Kelly v. City of Pittsburgh
Kelly versus City of Pittsburgh
Headnotes
Summary
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Opinion of the Court
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Mr. Justice Gordon
delivered the opinion of the court, January 7th 1878.
*176 The lands of James Kelly, the appellant, upon which the taxes complained of were assessed, were formerly within the township of Collins, and were afterwards, under the provisions of the Act of April 6th 1867 (Pamph. L. 846), made part of the city of Pittsburgh. That there may be no doubt concerning the subject-matter of the plaintiff’s complaint, and that we may exhibit’ precisely the nature and character of his contention, we give the 6th paragraph of his bill in extenso.
“ It is competent for the legislature, with or without the consent of the citizens, to enlarge the limits of any town or city, and it is competent for the defendant (city), when the requirements of'population, commercial and mechanical interests, sanitary or protective municipal purposes require it, to apply to city uses, the full extent of her territorial limits, but your orator expressly denies that such necessity or even propriety exists; on the contrary, large amounts of city territory, on either side and in front of your orator’s farm, are occupied, held and owned, without prospects of demand for city purposes for many years to come. Your orator insists that by extension of city territorial limits, the character, situation and use of his said lands were not changed, but remain an improved and occupied farm as before, and agricultural lands only, having received no benefit whatever in the way of municipal improvements, aid, protection, convenience or care; and that, therefore, they 'are not in any sense liable to municipal or city taxation for any purpose whatever, for no single benefit has been received.” Again, paragraph 18, latter part: “ But your orator expressly denies that the defendant had any municipal jurisdiction over his said land, or farm, or any right to impose taxes thereon, for city or municipal purposes whatever.”
We are thus presented with the broad question of the right of the city to tax rural lands within its bounds for any municipal purpose whatever. It is not admitted that the city succeeded to the rights of the township in this respect, for this would be a surrender of the whole controversy, since it is not doubtful that the township had the power to tax these lands for every lawful municipal purpose whatever.
The power of the legislature to transfer the plaintiff’s farm from the one municipality to the other is admitted; indeed that power could not, in the face of Smith v. McCarthy, 6 P. F. Smith 359, be gainsaid. But it is urged, nevertheless, that the city’s power of taxation must be suspended until this land becomes necessary for city uses. Exactly what this means we are not informed, nor do we suppose it can be certainly known except from some judicial decree not yet rendered. No doubt the meaning of the plaintiff is, that this power of the city is to be suspended or to rest in abeyance until the city is so nearly built up to his lands that they may be advantageously laid out and sold as city lots, and until this *177 occurs they are to be exempt from all taxes of a municipa cnaracter. This proposition is novel in Pennsylvania, since we have uniformly, and heretofore without serious complaint, in boroughs as well as cities, taxed rural and even unseated lands for borough and city purposes. This doctrine is, however, supported by certain cases, cited by the learned counsel for the appellant, decided in the superior courts of Iowa and Kentucky. The bill seems closely to have followed these cases, and it is principally upon their authority that the plaintiff's case is rested. These decisions, whilst entitled to great respect, are not to be allowed to unsettle our own rules on the subject of taxation or change the current of our policy on that subject. They are, indeed, of doubtful authority; for Judge Cooley, in his work on taxation, when speaking of these very cases, remarks : that it is difficult to harmonize them with the conceded principles governing the laws of taxation ; for they, not questioning the legislation as being in excess of authority, leave it to stand, and only interfere to qualify its effect on the ground that it has been adopted on improper grounds and will operate unequally. This is done on an inquiry into the facts and a substitution of the judicial for the legislative conclusion on a subject not at all judicial; a subject too — the proper limits of city extension — upon which persons are certain to differ widely, and where inquiry, after the judicial method by examination of witnesses, is usually much less satisfactory than that personal knowledge and investigation which legislators are supposed to possess or make. It has, indeed, the effect to suspend the legislation until certain conditions influencing the judicial mind are fulfilled. We need not stop to consider the inconvenience or uncertainty of such a condition of things, or how little consonant it would be with our settled modes of thought and action on subjects of this kind. There is, however, an element in the case in hand, which either did not exist in the cases alluded to or was not sufficiently considered; that is, the subjugation of the lands to previous municipal taxes. The argument in favor of their exemption, would have more strength had they previously to their attachment to the city, been subject only to state and county rates and levies; had they not been within the dominion of any municipality equivalent to that now complained of. But the plaintiff’s property was subject to municipal taxes when it was yet in the township of Collins, hence, it is not subjected to any new or even greater powers than formerly; it has been but transferred from township to city. This element breaks the force of the plaintiff’s argument, as it leaves him nothing of which to complain; for his complaint is not that his municipal burthens are greater in the city than they were in the township, but that as his lands are now situated the city has no power to tax them in any manner whatever. This is the bald proposition submitted for our discussion ; a proposition requiring little consideration for its disposition, since there *178 is here no room for the intervention of judicial interference, or for the exercise of judicial discretion. The legislature certainly did not exceed its powers in the act consolidating the two municipalities, and as both had the power of taxation over their several territories, that power must remain with the present corporation, and the plaintiff’s lands must continue liable for those rates and levies to which it was subject under the township government, otherwise they are exempt from those impositions for the maintenance of the public schools, the support of the poor and construction and repair of the highways, from which no one’s property ought to be exempt.
On the broad ground, therefore, on which the plaintiff has put his plaint, it cannot be maintained and must be dismissed. Considering it, however, from the less general and most favorable point of view and it but comes to this: that the taxation is unequal and burthensome, and that the complainant is taxed for some things, as police and water, from which, however necessary for the welfare of the municipality, he derives no benefit. Granted, that the tax is both, unjust and unequal, it does not follow that the remedy is within the power of the courts ; on the other hand, the contrary has been expressly ruled. In the case of Weber v. Reinhard, 28 P. F. Smith 370, Mr. Justice Sharswood says, in commenting on the case of the Philadelphia Association v. Wood, 3 Wright 73 , “ the idea that the court could pronounce a tax unconstitutional on the mere ground of injustice or inequality, was expressly repudiated.” He'further remarks; “There is no provision in the constitution that taxation shall be equal. Sound policy requires that it should be so as far as possible, but perfect equality is not possible.”
So in Kirby v. Shaw, 7 Harris 258, Gibson, C. J., says, “As regards taxation, there is no limitation of it. Equality of contribution is not enjoined in the Bill of Rights, and, probably, because R was known to be impracticable.” That the person taxed derives no immediate personal benefit from the purposes to which the taxes are appropriated, is, in like manner, no argument against the constitutionality of the law imposing them. Eor if direct personal benefit were to form a criterion for taxation we should have half the community clamoring at our doors for relief. What interest, direct and personal, has the unseated landowner in the schools or poor of the borough or township in which his lands lie ? Or, for that matter, what interest has any one, not having children to educate, in the schools of either township, borough or city ? Why shall one pay road tax when roads are of no benefit to himself or his property ? Why shall he help pay the expenses of a fire department when his property is so situated that it may burn down before an engine can reach it ? Or, why, either in the country or city, having a supply of water on his own premises, shall he pay a water tax ? To these questions there is but one answer; these things are intended for the public good, and hence, every one is indirectly *179 if not directly,‘benefited thereby; the taxes, levied for their maintenance, are a public burthen and therefore every one must contribute to its support. If, however, this burthen rests unfairly heavy upon some classes or upon some individuals the remedy is not with the courts but with the legislature. As is said in Kirby v. Shaw, the judiciary could interfere, only, “ by overstepping the limits of its sphere; by arrogating to itself a power beyond its province ; by producing intestine discord, and by setting an example which other organs of the government might not be slow to follow.” But the legislature has granted all the relief that the plaintifl' and his class ought, in reason, to expect or ask, for at the time of filing of this bill, rural lands were authorized to be taxed at but two-thirds of the ordinary municipal rates, and now, by the Act of May 5th 1875, Pamph. L. 124, at but one-half those rates. Thus the injustice and inequality of the taxation complained of, has been, if not wholly obviated, at least, very much mitigated.
Again, taxation is peculiarly a legislative function, and, before wTe undertake to revise it, we should have a clear warrant therefor in the letter of the constitution. “ A tax law must be considered valid, unless it be for a purpose in which the community taxed has no palpable interest — when it is apparent that the burthen is imposed for the benefit of others, and when it would be so pronounced at first blush Sharpless v. The Mayor of Philadelphia, 9 Harris 147 (Black, C. J.); Speer v. Blairsville, 14 Wright 150 (Agnew, J.) But in the present case there is no doubt that the community, called the city of Pittsburgh, of which the plaintiff is a member, has a direct and vital interest in the taxation complained of, and such being the case, there is an end of our power to grant relief.
It will not do for us to stop to consider the peculiar interests of the individual as segregated from the community, for if we should so do, few tax laws could be enforced, since it often if not generally happens that such laws bear hardly upon some individuals, and not unfrequently individual interest is opposed to that of the public. We must have regard to the public welfare. If it bo not shown to us that the legislation is for the promotion of'the good of some other party or community than the one taxed, we have no right to pronounce it unconstitutional. The individual must be regarded as interested in the public welfare, hence his interest must be looked for in that of the community of which he forms part. Now, it may be true that the plaintiff is not personally benefited by either the educational or poor department of the city; but neither is any one not having children to educate, and not being himself a pauper. Yet, for such reason wo are hardly prepared to stay the hand of the collector of school and poor rates. Ho may not be personally benefited by the fire or police department; but the general municipality is largely benefited thereby, and his welfare is found in the prosperity of that municipality. As was well said by the learned *180 master to whom this case was referred, the value of the plaintiff’s property has, heretofore, depended upon- the growth and prosperity of the city; but these, in turn, depend upon the character of the city streets and police department, and upon its water, gas, and educational facilities. Without these it would fall into decay, and the value of real estate within the boundaries of the municipality, including that of the complainant, would be incalculably reduced. It is thus apparent that the plaintiff has not only a general, but a direct interest in the objects which the taxation complained of is intended to promote.
Decree affirmed.
Dissent
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Agnew, C. J., and Sterrett, J.,
dissent, Agnew, C. J., filing the following opinion.
The leading facts of this case, raising an important questiomupon the power of taxation for city purposes, .alleged in the bill, and either not denied in the answer or found by the master, are these: The limits of the city of Pittsburgh were extended to embrace a large tract of country composed of farm lands, including the rural townships of Pitt, Oakland, Collins, Liberty and Peakes. The plaintiff owns a farm of eighty acres, bounded by farms, excepting an adjacent parcel of about twenty acres laid off into lots. On the north of his tract lie about one thousand acres in farms, and surrounding and between it and the city lie other farms. His tract i‘s used for farming and dairy purposes only. It was not brought into the city with his consent, and has not been laid off into lots. It lies distant from gas-pipes and lamps, water-pipes, sewers, police beats, and fire appar-atus. It has no streets or lanes maintained for city uses, excepting those prior existing roads which were and are sufficient for the use of his farm. It has springs of water sufficient for its use. In consequence of being brought within the city limits it is taxed a sum of $2117, on a valuation of $244,000 for city purposes alone, exclusive of county, poor, and ward school taxes, while the productive yearly value as a farm is $10 per acre, or $800 for the whole.
The master has' discussed a, number of immaterial questions; for example, the system of valuation and its conclusiveness, the power of the city to extend works into the tract, and the ability of Kelly to lay off his land into city lots. These, however, concern the future chiefly, and afe aside from the true question, that of power, to wit: the authority of the city to burthen such property in its existing condition, with taxes for merely city purposes. The rightful power of the city to do this is rested primarily on the power of the legislature to extend the city limits over farm lands. The power to extend is conceded. It is often necessary as a wise preparation to bring such lands into a state necessary to adapt them to future progress. But this concession to the power of extension, and general municipal jurisdiction, gives no power to tax farms hav *181 ing no need of city improvements for exclusively city purposes. The powers are essentially different. It might as well be argued that the extension, by Act of Assembly, of the limits of Pittsburgh to the boundaries of Allegheny county, or to that part lying between the rivers Monongahela and Allegheny, would confer a power upon the city to tax all the farms in the county or that section of it between the rivers, for gas, water, police, fire and other city uses. The difference is not in principle, but only in extent of surfaces. It is just as illegal to tax these farms in the several townships heretofore named, as to tax all the townships in that section between the rivers. The latter only exhibits the abuse more palpably. The owners of these farm lands in the townships brought within the limits, have no common interest or benefit of the improvements in the built up, or true city.
If the legislature can, by a mere extension of boundary, authorize the city to tax farm lands for purely city purposes, it might, without extension, direct all farms, within given lines, outside of the city, to pay these city taxes. Thus, when we get rid of that confusion of thought which confounds extension of boundary and power of taxation, we perceive that taxes laid on mere farm lauds to pay city levies applicable only to the built-up or true city, is nothing more than an order to farmers to pay for the benefit of the city residents; it is taking the money of A. to pay for improvements made for the use of B. This is palpably and flagrantly unjust, and therefore against common right. If the legislature itself cannot compel farmers to pay city taxes for purely local purposes in which they have no share, it is clear it cannot authorize the city to do indirectly what it cannot do directly. An order, with or without the extension of boundary, upon a certain class to pay taxes for local benefits conferred on others, is wholly different from a power to lay a general tax for the support of government. The latter is a power to which every citizen of a state submits himself in consideration of the general benefits derived from government. But as to the former, it is well said, in Bradshaw v. The City of Omaha, 1 Nebraska 16, that the object is to make the owners of farms divide the expense of supporting the municipal government with those who need it; that the true city is the built-up part; while the levy of taxes on farms is to confiscate property outside for the benefit of those within the true city. See, also, Taylor v. Porter, 4 Hill 140 ; Holden v. James, 11 Mass. 896 .
The power of the legislature is clear to divide the state, for convenient local government, into counties, townships, cities, boroughs, &c., conferring on each an appropriate autonomy. But in doing this, the powers conferred must be adapted to the ends to be accomplished by each. A sound and largo discretion is necessarily exercised in this adaptation of powers. But it is equally clear that the powers conferred must have a reasonable appropriatenesss to the *182 end proposed. Such an exercise of power only can fairly comport with the true and acknowledged principles of our-American governments, which are all founded on the rights of the people, and for their “peace, safety and happiness:” sect. 2, Declaration of Rights, New Constitution. These principles are well stated by Justice Chase, in Calder v. Bull, 3 Dallas 386 : “ The people of the United States,” he says, “erected their constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are proper objects of it. The nature and ends of legislative power will limit the exercise of it.” Again : “ There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of the legislative power; as, to authorize manifest injustice by positive law; or, to take away that security for personal liberty or private property for the protection whereof the government was established.”
The same thoughts were thrown out by Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch 87 : “It may well be doubted,” he says, “ whether the nature of society and of government does not prescribe some limits to the ^legislative power; and if any be prescribéd, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation ? To the legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power, is well worthy of serious reflection.”
- This is precisely the question before us, whether, under the mere name or color of taxation, the. legislature can confer on a city a power to transfer the money or property of farmers outside of the true city, to those who live within it, for purposes by which they alone are benefited ?
The inviolability of the right of private property and the natural boundary of the legislative power has been enforced already in this state in the case of Washington Avenue, 19 P. F. Smith 363, in these words: “ When, therefore, the constitution declares in the ninth article, that among the inherent and indefeasible rights of men is that of acquiring, possessing and protecting property, that the people shall be secure in their possessions from unreasonable searches and seizures; that no one can be deprived of property unless by the judgment of his peers or the law of the land; that no man’s property shall be taken or applied to public use without 'just compensation being made; that every man for an injury to *183 his lands or goods shall have remedy by due course of law, and right and justice administered without sale, denial or delay, and that no law impairing contracts shall be made, and when the people to guard against transgressions of the high powers delegated by them have declared that all these rights are excepted out of the general powers of government, and shall for ever remain inviolate, they for their own safety stamped upon the right of private property an inviolability which cannot be frittered away by verbal criticism on each separate clause, nor the united fagot broken stick by stick, until all its strength is gone. There is a clear implication from the primary declaration of the inherent and indefeasible right of property, followed by the clauses guarding it against specific transgressions that covers it with an aegis of protection against all unjust, unreasonable and palpably unequal exactions, under any name or pretext; nor is this sanctity incompatible with the taxing power, or that of eminent domain, where for the good of the whole people burdens may be imposed or property taken. I admit that the power to tax is unbounded by any express limit in the constitution; that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain, and has no thought of compensation by way of return for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But nevertheless taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must, therefore, visit all alike in a reasonably practicable way, of which the legislature may judge, but within the just limits of what is taxation. Like the rain it may fall upon the people by districts and by turns, but still it must be public in its purpose and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction, to do so is confiscation, not taxation; extortion, not assessment; and falls within the clearly implied restrictions of the Bill of Rights.”
Therefore, while we concede the wide range to be given to legislative discretion in adapting the means to the end, that is, to the purposes of local government, there is a limit beyond which the legislative power cannot sacrifice the sacred right of private property. This limit is reached when it palpably and plainly sacrifices this right, which the people themselves have jealously guarded against transgression in their fundamental law. There must be, therefore, a reasonable appropriateness in the means employed to execute the legislative purpose. This has been well expressed by Chief Justice Marshall, that bright luminary of constitutional law, in discussing the power of Congress, under the 19th clause of the 8th section of the 1st article of the Federal Constitution, to make all laws necessary and proper for carrying into execution the federal powers. “ But we think (he said) the sound construction of the constitution must allow to the national legislature that discretion with regard to *184 the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be Avithin the scope of the constitution, and all means Avhich are appropriate, which plainly are adapted to that end, which are not prohibited, but consist Avith the letter and spirit of the constitution; are constitutional:” McCulloch v. Maryland, 4 Wheaton 316 . The italics are mine.
This was said by that greht jurist of an express poAver to pass all laAYS necessary and proper to execute expressly conferred poAvers — the means must be appropriate — must be plainly adapted to a legitimate end — one not prohibited, but consistent with the letter and spirit of the constitution. Hoav much stronger then does the language apply to a case like this, Avhere no express power over the means is given, but the poAver is left to be inferred only from its appropriateness.
The taxing power conferred on the city, therefore, cannot éxtendto such a case as this, where a ruinous burthen is laid on land wholly rural and outside of the city proper, for purely local and city objects,'in Avhich Mr. Kelly the OAvner has no interest. This distinction betAveen local taxation for purely local purposes, and general taxation by the state, in which all are interested, cannot be overlooked or thrust aside. It is the very pivot of the question: People v. Mayor of Brooklyn, 4 Comst. 419; Morse v. Stocker, 1 Allen 159 . It is not the extension of boundary Avhich is unconstitutional, but it is the imposition of a burthen, where it is palpably and flagrantly unjust and contrary to common right: Bradshaw v. Omaha, 1 Neb. 16 .
We are not without very respectable and numerous precedents for the doctrines contended for. The very point in question is decided in the following cases: Cheaney v. Hooser, 9 B. Mon. 330 ; Covington v. Southgate, 15 Id. 491; Morford v. Unger, 8 lovva 82; Langworthy v. Dubuque, 13 Id. 86; Fulton v. Davenport, 17 Id. 404; Bradshaw v. Omaha, 1 Neb. 16 . The opinions in some of these cases are elaborate, well-considered, and very convincing to my mind.
Much of the answer given to this view of the natural right of property secured by constitutional limitations, is a mere criticism on words. Thus it is said the protection claimed refers only to the power of eminent domain, which relates to a taking, not a taxation of property. Even this clause is entitled to a liberal interpretation : Pearce’s Heirs v. Patton, 7 B. Mon. 162 . But the Declaration of Rights does not confine its protection to this clause, when it declares the inherent right of private property, and places it on the same high plane of protection as the rights of life and liberty, or when it declares that the possessions of the people, as well as their persons, houses and papers, shall be secure from unreasonable seizures ; *185 and when it asserts that free governments are instituted for their peace, safety and happiness. Indeed, the whole circle of fundamental rights rise up in earnest protest against the doctrine of the absolute despotism of the legislative power over property; while the clause relating to the power of eminent domain only strengthens the protest. It is not the province of the courts, which stand between the citizen and the abuse of power by public servants, to fritter away these clauses to mean next to nothing. Eminent domain is simply high and eminent dominion, and is but another name for sovereignty. Specially, it is but one of the powers of sovereignty, which includes the taxing power as well as that which takes. Taxation exacts of the owner of property a share of the public burdens, as his just proportion, for the benefits received from the government. Eminent domain goes a step farther, and takes more than a j ust share, and therefore awards compensation for the excess : People v. Brooklyn, 4 Coms. 420. But it is evident that both are founded on the consideration of benefits conferred in some form. Sovereignty, in a constitutional government under a bill of rights, imports'no arbitrary power for any purpose. What is taxation but a delegated power, and therefore subject to the fundamental rights of men, which government is intended to protect, when the exercise of this power conflicts with them without just cause V If the power to tax be absolute and unbounded by just cause, there is no protection whatever. You cannot take property without just compensation ; but you may tax it to destruction. You may not lop off a limb or cut off the head without a just cause, but you may bleed the whole trunk to death. Or if you cannot find a good cause, you may presume it; or you may find it in some infinitesimal quantity to furnish a pretext. Clearly, the power of taxation is not so destructive. It is bounded by the exigency which calls forth its exercise. Kirby v. Shaw, 7 Harris 259, a case admittedly on the verge of the taxing power, contains probably the strongest expressions of the absolute character of the taxing power; yet these must be taken in reference to the case itself which called them forth, and it was one where a special benefit was conferred on the borough of Towanda, and the chief justice made this the corner stone of his argument.
In discussing this question, the advocates of unlimited power ignore the distinction so palpable between the general power of taxation for the benefit of the whole state, though laid in districts, and the imposition of local burthens in return for specific benefits. As to the former, all men participate more or less in the general advantages of government; but there can be no such postulate for the latter, where it is palpably clear the local burthen is imposed without just cause and is plainly for the benefit of others. And a court must regard a substantial return not a merely speculative or shadowy benefit, which amounts to no more than a pretext.
*186 . When, therefore, the exercise of the power of local taxation is manifestly arbitrary and palpably unjust and without just cause, when, according to Chief Justice Marshall, it is not “ appropriate’’ to the true purpose of local or city government, it is not constitutional, it infringes the fundamental rights of the citizen and is void. This is the rule laid down in Sharpless v. City of Philadelphia, 9 Harris 164, and many other cases to determine the constitutionality of laws: Fletcher v. Peck, 6 Cranch 87 ; Cooper v. Talfain, 4 Dallas 14 ; Eakin v. Raub, 12 S. & R. 339; Commonwealth v. Smith, 4 Binn. 123 ; Cheaney v. Hooser, 9 B. Mon. 330 ; Morford v. Unger, 8 Iowa 82 ; Bradshew v. Omaha, 1 Neb. 16 . In this case it is palpably, clearly plain, that as to gas, water, fire and police, Kelly’s farm is taxed for purely city purposes in which it has no share. It is perfectly manifest that his money is transferred to a local use for the benefit of others. Why then 'shall a court hesitate to pronounce the burthen contrary to right, and void. No stronger authority will be found for the principle I have insisted upon than the decision of the whole court in the case of the Bridge over Sawmill Kun, ante 163. The very foundation of the opinion of Justice Woodward is the absence of peculiar benefit to the party assessed. On the doctrine of general benefits, or a supposed or infinitesimal benefit the assessment was valid. Its rejection proves that this court does look at the nature and practical operation of the charge, and the want of any substantial return for the tax, in local taxation.
Keferenee is made to the Kitty Eoup case as covering this. That is a mistake. • It decides one point only, the power under the new constitution to classify the subjects of taxation. But the power to classify is essentially different from the power to impose any tax. Classification implies that the subject is taxable for a proposed purpose. But our question is upon the power to impose any tax for gas, water, fire and police. The classification into urban and rural, the only point in the Kitty Eoup case that had a majority of the court, does not determine whether the rural is subject to a tax for merely city purposes. Some rural properties may be subj ect, for they may have the benefit of gas, water, police and other city advantages. But when the property is, as here, a farm not subject to the tax for these city purposes, it is manifest that classification has nothing to ' do with the case. Classification merely reduces the amount of the tax on the subject of the classification (when it is a taxable subject)' to two-thirds if rural. But the point made in this case is that the subject is not taxable at all for these purely city uses, and the tax is, therefore illegal in whole and in part. It is not taxable for two-thirds or any other proportion. It is not a tax for those general purposes which concern the state, such as county, poor, road and school tax. That would bring the case within the general taxing power. In such a case it is immaterial whether the tax is imposed *187 over the state at large, or in districts, for the purposes are those of general advantage.
We have arrived just at that point in the history of local taxation where, in my judgment, this court should stand firmly as the bulwark of human rights to prevent their sacrifice in detail and by gradual encroachment. If the rights of property can be taken or taxed away, without a justifiable cause to bring the legislative act within the just powers of government, it is confiscation, not legal contribution. Planted on the broad foundation of the rights of men, I shall stand alone, if no one go with me, in the defence of constitutional liberty, opposed to every scheme of plunder, however gilded or bright, which the tenants of municipal places may devise.
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