DIKES.

DRAINAGE.

IRRIGATION.

289

ductive, drains are a necessity. They must often be several miles in extent, and laid out with reference to some general plan. It is easy to see that the execution of these works is beyond the power of isolated individual effort, and that the public authority must be invoked to prescribe the location and plan, and thus to overrule the conflicts of individual opinion and individual selfishness. It is certainly possible to execute these necessary works by means of assessments upon property in proportion to benefits received, and thus to secure results more equitable to individuals than could be obtained in any other way or by any other system of taxation. Looking, therefore, to the urgent necessity for the exercise of this power, however cogent may be the considerations which address themselves to the legislature to induce that body carefully to guard against its abuse, I can see no cause to regret, and no argument against, its existence." 1

The courts of Massachusetts arrive at the same result, although on different grounds. In their judgment men whose interests are alike and are affected by the same peril stand in a relation which is analogous to that of tenants in common, and may, like it, be regulated by the legislature. Hence persons who inhabit the banks of a stream and are entitled to use its waters, and in danger when it is in flood, may be compelled to unite in the measures requisite for keeping it within due bounds; and the principle is the same where a marsh cannot be drained without concerted action and works executed on a plan embracing the entire tract.2

Such legislation may, like authorizing the sale of property which cannot be parted without spoiling the whole, or the erection of a party-wall on the boundary line of an adjacent lot, be justifiable as an exercise of the police power; but if

1 Reeves v. Wood County, 8 Ohio St. 343.

2 Coomas v. Burt, 22 Pick. 422; Talbot v. Hudson, 16 Gray, 417; State v. Blake, 6 Vroom, 208, 7 Id. 442; Lowell v. Boston, 111 Mass. 468. See Hoagland v. Wurts, 41 N. J. Law, 175, 177; Kean v. Driggs Drainage Co., 45 Id. 91, 94; Head v. Amoskeag Co., 113 U. S. 9.

Wurts v. Hoagland, 114 U. S. 606; State v. Newark, 3 Dutcher, 185; Palairet's Appeal, 67 Pa. St. 480, 493, 498.

VOL. I. -19

community of interest is analagous in this regard to community of title, which is by no means clear,1- it does not afford a ground for charging the respective owners with an outlay made for its promotion, unless the public interest is also involved, nor except so far as they are actually and individually benefited; 2 and it is not less requisite that they should have notice and an opportunity to appear.3

Laws of this description have moreover been impugned as tending mainly, or at all events primarily, to enhance the value of the land concerned; and no argument is requisite to prove that a tax cannot be levied on one or on many individuals for drains constructed for private ends, and in which the community are not interested. It is immaterial in this regard that the party who objects will be a gainer to the full amount which he is required to pay, because under a free government, when no public considerations are involved, each man should be allowed to decide for himself.5

A distinction has nevertheless been taken in New Jersey, and sanctioned by the Supreme Court of the United States, between cases where such a proceeding is authorized for the public good, and those where it is instituted on the application of the owners, or some of them, with a view to the security or improvement of property which is so situated that joint action is requisite, and none can proceed unless all concur. In the former class, individuals cannot be compelled to bear a larger share of the burden than corresponds to the benefit received by each in excess of that conferred on the community at large. In the latter, the owners are answerable for the entire outlay, whether it does or does not exceed the benefit, just as an owner may be compelled to suffer the

1 Rutherford's Case, 72 Pa. St. 85.

2 Reeves v. Wood County, 8 Ohio St. 333; Butler v. The Supervisors, 26 Mich. 29; The Tidewater Co. v. Coster, 3 C. E. Green, 54, 518. 8 Rutherford's Case, 72 Pa. St. 85.

4 Reeves v. Wood County, 8 Ohio St. 344.

Butler v. The Supervisors, 26 Mich. 29; Philadelphia v. Scott, 81 Pa. St. 80.

Coster v. Tidewater Co., 3 C. E. Green, 528, 531; Kean v. Driggs Drainage Co., 45 N. J. Law, 91.

EQUITY IN TAXATION.

291

erection of a party-wall on his ground in aid of a building on the adjacent land, or land sold at the instance of one tenant in common against the will of the rest, if it is insusceptible of division.1

Such cases come, it has been said, under the head of the police power, as distinguished from the power of taxation or the right of eminent domain. So viewed, they seem questionable, because the proper object of the police power is the general good, and individuals cannot be justly charged for more than the benefit conferred. A man should not be compelled to pay for an improvement which he does not desire because his neighbors think that it would be beneficial; and, notwithstanding the language of the Supreme Court of the United States in Wurts v. Hoagland, we may believe, as the Chief-Justice of New Jersey declared when the question was before the State tribunals, that such legislation transcends ordinary bounds, and can be sustained only as a custom which has become inveterate through general acquiescence and the lapse of time.3

It is not less clear that taxation should be so far equal that the charge on each place or person shall not be disproportionate to that laid on other persons or localities, or the benefit that will presumably result from the expenditure of the proceeds of the tax; and when its inequality appears as a conclusion of law, or as a necessary inference from the facts, the judiciary may afford redress by declaring the act unconstitutional and inoperative. "I admit," said Agnew, C.-J., in In re Washington Avenue, "that the power to tax is

1 State v. Blake, 6 Vroom, 208; 7 Id. 442; Wurts v. Hoagland, 114 U. S. 606, 611; Hagar v. The Reclamation District, 111 Id. 701; Head v. Amoskeag Manuf. Co., 113 Id. 9, 21; Davidson v. New Orleans, 96 Id. 97; In re Pequoit River Drainage, 10 Vroom, 438; 12 Id. 175; 13 Id. 553; 14 Id. 456.

2 Wurts v Hoagland, 114 U. S. 606, 613; State v. Newark, 3 Dutcher, 185.

* See Hoagland v. Wurts, 41 N. J. Law, 175, 177; Kean v. Driggs Drainage Co., 45 Id. 91, 94.

Livingston v. Paducah, 80 Ky. 656; St. Louis v. Spiegel, 75 Mo. 145; In re Washington Ave., 69 Pa. St. 352, 363.

unbounded by any express limit in the Constitution, and 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 a 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 in districts and in towns; but still it must be public in its purpose, reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust taxation. To do so is consfication, not taxation; extortion, not assessment; and falls within the clearly implied restriction in the Bill of Rights."

An exact equalization of taxation is difficult, if not impracticable, and an attempt to enforce it through the courts would cripple, if not defeat, a power which must be exercised with some latitude in order to be effectual; but there are fixed boundaries which the legislature cannot pass.1 needs no argument to prove that in a government which is not omnipotent, and is, on the contrary, hedged in by guaranties of private rights, there can be no unlimited power to concentrate the public burdens on certain specified things, classes, or persons.2

A law imposing the entire debt of a State on a single town or county would not be a tax, but a manifest taking of private property for public use without due process of law, or the compensation which is essential to the exercise of the right of eminent domain. Such gross exactions are not likely to occur; but less may render a tax unconstitutional, and justify the issuing of an injunction. A class, individual, or locality cannot be charged with a disproportionate share

1 Lexington v. McQuillan, 9 Dana, 513; The Loan Association v. Topeka, 20 Wallace, 655.

2 Agens v. The Mayor, 37 N. J. Law, 415.

UNIFORMITY IN TAXATION.

293

of the cost of a work done or improvement made for the general good; and whatever form such an attempt may take, it will be invalid.1

Real estate may be taxed to the exclusion of personal, or personal of real; but neither can be subjected to a different rule from that applied to other property of the same kind without some apparent reason, as that the tax is laid by a municipal corporation for city use, and the property exempted rural. So the legislature may tax clocks, and not watches, or gold watches to the exclusion of silver, but cannot lay a tax exclusively on watches made or owned in a single town or factory, unless the proceeds are wholly used for the benefit of the persons who bear the burden. In like manner persons engaged in the same trade or calling must be taxed uniformly; and the imposition of a duty on the dealers or shopkeepers in a single quarter of a town, without some better reason than the difference of the locality, is an inequality which the Constitution does not tolerate.2

A tax is uniform within the meaning of the Constitution whenever it bears equally on the things, lands, or persons on which it is imposed, wherever they are found. If these conditions are fulfilled, it is immaterial that there are various localities where the tax is ineffectual for want of a subjectmatter on which to operate. Perfect uniformity and entire equality of taxation are, it has been justly said, things which are unattainable by the legislature, and cannot be enforced by the courts.3

The clause of the Fourteenth Amendment which guarantees to every person the equal protection of the law, does not vary the rule, or require taxes to be levied uniformly upon all descriptions of property. The matter is left to the discretion of the legislative power, and there is nothing to for

1 Hammett v. Philadelphia, 65 Pa. St. 146; Agurs v. The Mayor, 35 N. J. 172, 37 Id. 415; The Tidewater Co. v. Coster, 3 C. E. Green, 518. 2 St. Louis v. Spiegel, 75 Mo. 145, 147; Durach's Appeal, 62 Pa. St.

491.

The State R. R. Tax Cases, 92 U. S. 575, 612; Head-money Cases, 112 Id. 580, 595.