Wells v. City of Weston

Leonard, Judge,

delivered the opinion of the court.

The question that has been argued before us upon this record, and the only one that we have considered, is, whether it is competent for the legislature to confer upon the city of Weston authority to tax, for local purposes, land lying beyond *388 •the corporate limits. We have considered the matter with all the care that it is our duty to do, when we are required to decide upon the constitutional validity of a legislative act; but being clearly of opinion that this provision of the charter violates the constitutional rights of the citizen, which we are bound to protect, we are constrained to pronounce accordingly. The judgment upon the demurrer will therefore be reversed and the cause remanded.

As the very purpose of instituting government is the protection of the citizen in his person and property, power to violate these rights would seem to be quite beyond the lawful authority of any government; and certainly the legislative department of this government can not arbitrarily take the property of one citizen and give it to another, and, of course, can not authorize others to do so. This is not within the power of any properly constituted government, and our American governments are expressly prohibited from taking private property, even for public use, without compensation to the owner. To justify even such an invasion of private property, it must be shown that the use for which it is about to be taken is a public one, and that the compensation to be given has been sufficiently secured to the party; and certainly, from the very purpose of all just governments, and this express provision in our own constitution, we may safely imply a constitutional prohibition against the arbitrary taking of private property for private use without any compensation. This, however, seems to be substantially the authority here given: those who live in the town are authorized to exact annually from those who live adjacent to it, a certain portion of their property, to be applied, under their own direction, to their own local purposes. And this we think can not be done under our government, which was instituted exclusively for the protection of individual rights, and where private property is expressly protected from any appropriation of it, even to public use, without full compensation to the owner.

It is true, the legislature possess the uncontrolled power of taxation, with the single limitation that “all property sub *389 jeet to taxation shall be taxed in proportion to its value;” and this authority to tax, they may undoubtedly delegate to subordinate agencies, such as county tribunals and municipal corporations, to be assessed and applied locally; but here the attempt is to authorize a municipal corporation — charged with the subordinate government of persons and things within its limits, and having, as incident to this, the power to tax these persons and things for local purposes — to impose a tax upon the lands lying beyond its limits ; or, in other words, arbitrarily, under the mask of a tax, to take annually from those who are without its jurisdiction a certain portion of their property lying within a half mile of the corporate limits ; which we think can not be done. Although it be true, as a general proposition, that the legislature can not delegate their legislative power, but must exercise it themselves' under their appropriate responsibilities; yet the practice of creating municipal corporations — with subordinate legislative power over the local affairs of the inhabitants, and, as incident to this, with authority to impose taxes upon the persons and things within the local jurisdiction in order to supply the local necessities — being firmly established, and daily practiced -by our American governments when our constitution was adopted, must he considered as an ordinary legislative power, and one, of course, that our legislature may lawfully exercise. But no instance, it is believed, can be found where these corporations have been clothed with power to tax others not within their local jurisdiction for their own local purposes ; and if the legislature possess the power, now claimed, over private property, they ought to exercise it themselves, and not delegate it to those whose interest it is to ubuse it.

It maybe often difficult to draw the line between a legitimate exercise of the taxing power and the arbitrary seizure of the property of an individual, or of a class of individuals, for local or general purposes, under the mask of this power. In Chaony v. Hooser, (9 Ben. Munroe, 330,) the question was as to the constitutionality of a law extending the limits of the town of Hopkinsville, for the mere purpose, as the party alleged, of bringing *390 his property within the corporation as a subject of taxation ; and the Judge, who delivered the opinion of the court, remarked, “ this is not the case of vacant land or of a well improved farm, occupied by the owner and his family for agricultural purposes, and which, without being required for either streets or houses, or for any other purpose of the town but that of increasing its revenue, is brought within its taxing power by an act extending its limits. Such an act, though on its face simply extending the limits of a town, and presumptively a legitimate exercise of power for that purpose, would, in reality, when applied to the facts, be nothing more or less than an authority to the town to tax the land to a certain distance outside of its limits, and, in effect, to take the money of the proprietor for its own use, without compensation to him.” Again, he observed, in reference to some limit in the exercise of legislative discretion in the imposition of taxes, “ that limit can only consist in the discrimination to be made between what may with reasonable plausibility be called a tax, and for which it may be assumed that the objects of taxation are regarded by the legislature as forming a just compensation, and that which is palpably not a tax, but is under the form of a tax, or some other form, the taking of private property for the use of others or of the public, without compensation. The case must be one in which the operation of the power will be, at first blush, pronounced to be the taking of private property without compensation, and in which it is apparent that the burthen is imposed without any view to the interest of the individual in the objects to be accomplished by it. If it be so, no matter under what form the power is professedly exercised, whether it is in the form of laying or authorizing a tax, or in the regulation of local divisions, or boundaries, which result in a subjection to local taxes; and whether the operation be to appropriate the property of one or more individuals without their consent, to the use of the general or local public, or to the use of other private individuals, or of a single individual, — the case must be regarded as coming within the prohibition contained in this *391 clause, or tbe constitution is impotent for the protection of individual rights of property from any aggression, however flagrant, which may be made upon them, provided it be done under color of some recognized power.” -

Without, however, expressing any opinion upon imaginary cases, it is sufficient for the decision of the case now before us, that the legislature can not authorize a municipal corporation to tax, for its own local purposes, lands lying beyond the corporate limits ; and upon this principle, the judgment of the circuit court is reversed and the cause remanded.