State v. Township Committee of Readington Township

The opinion of the court was delivered by Depue, J.

Application being made by the school trustees to the township committee for the issuing of bonds to the amount of $3500, under the act above recited, the township committee declined to issue the same, whereupon application was made to this court for a writ of mandamus to compel the committee to issue such bonds.

The amount of tax assessed in the school district for the building of a school-house in the year 1871 was $1000. Of this amount it appears by the depositions that $807 have been *69 •collected. The residue is in litigation. The act directs that the first assessment upon the persons and property in the school district liable to taxation to provide the means of paying the bonds, shall not exceed §2000, and that in assessing the sum the township committee shall so direct to be raised, the amount in excess of §1000, shall be assessed only on tlnsse taxable inhabitants of the school district who have not paid the assessment made against them for the year 1871. Under this section the township committee are empowered to direct the assessment of the sum of $1000 upon certain individuals who are delinquents, whose delinquency in all is less than $200. It is insisted by the defendants’ counsel that the mode of levying the tax contemplated by this act is not a legitimate method of taxation, and that therefore no adequate provision is made for the payment of the bonds of the township by taxation upon the school district.

The power of the legislature to validate the assessment of taxes which' is liable to be avoided for mere irregularities in the proceedings in making the assessment, is well settled. State v. Apgar, 2 Vroom 358 ; State v. Town of Union, 4 Ib. 350. The act in question has none of the qualities of an act validating the proceedings in levying the former tax. It is the assumption by the legislature of the power to subject the delinquents to a penalty of §1000 for a delinquency of $200, in the discretion of the township committee. That this is the real import of the act is apparent. Indeed, the learned and astute counsel who argued this motion in behalf of the relators, so clearly discerned the exact import of this legislation that he was driven to maintain before the court that it was within the power of the legislature to select certain individuals as subjects of taxation, and impose upon them individually such burdens as the legislature saw fit, even to the extent of the payment of the state debt, or defraying the entire expenses of the state government.

The power of the legislature in the matter of taxation is said to be unlimited. Such undoubtedly is the theory of our government. But it is not every exaction made under color

*70 of taxation that can be supported as the legitimate exercise of the sovereign power of taxation. It is of the very essence of taxation that it should be equal and uniform, and that where the burden is common there should be a common contribution to discharge it. Cooley’s Const. Law 495. Not that it is essential to the validity of taxation that it should be levied according to rules of abstract justice. The legislature may create special taxing districts, defining their limits in its discretion, or designate certain occupations, trades or employments as special subjects for taxation ; or discriminate between differents kinds of property in the rate of taxation; or may apportion the tax among the classes of persons or property made liable to taxation, in such manner as may seem fit. In this way inequalities in the share of the public burden, or even double taxation may arise without any relief except by appeal to the legislature. But when the taxing district has been defined, and the classes of persons or kind of property specially set apart for taxation have been designated, the tax must be apportioned among those who are to bear the burden upon the rule of uniformity. Cooley’s Const. Law, pp. 493-513. Taxation operates upon a community, or a class in a community, according to some rule of apportionment. When the amount levied upon individuals is determined without regard to the amount or value exacted from any other individual or classes of individuals, the power exercised is not that of taxation but of eminent domain. The People v. Mayor of Brooklyn, 4 Comstock 420. .A tax upon the persons or property of A, B and C individually, whether designated by name or in any other way, which is in excess of an equal apportionment among the persons or property of the class of persons or kind of property subject to the taxation, is, to the extent of such excess, the taking of private property for a public use without compensation. The process is one of confiscation and not of taxation.

But it is argued that the township committee may, in executing their duties under the act, so perform them as that no greater sum will be levied upon the delinquents, or their *71 property, than the amount of their unpaid tax, and that therefore a valid tax may be laid under the act. The argument may be sound. On that subject the court express no opinion. For present purposes it is sufficient that the act in question gives to the township committee the power arbitrarily to impose a sum in excess of such delinquency. Nor does it appear, except by the recital in the preamble of the act, that the refusal of the delinquents to pay the former assessment is based on mere irregularities in the mode of assessment. For aught that is shown, the legal objections to the collection of the tax assessed against them, are of such a nature as to be beyond the power of the legislature to remove.

The school district in question is one of the school districts in the township of Readington. The act does not impose upon the township the burden of erecting the school building. It contemplates that the cost shall ultimately bo borne by the taxable inhabitants of the district, although the only means of reimbursement is by the taxation provided for.

The court should not award a mandamus to enforce this compulsory suretyship by the township for the debts of the school district, where any well grounded doubt exists whether the means of indemnification provided are such as can be made available. It is better to subject the school district to the inconvenience of a delay until further legislative action may be obtained, than to involve the township in a litigation to enforce the collection of a tax of doubtful constitutionality.

The application is denied, and rule to show cause discharged.

Cited in State, McClosky, pros., v. Chamberlin, 8 Vr. 388 ; State, Hoey pros., v. Collector, &c., 10 Vr. 75.