dissenting:
Not being able to assent to the views of my brethren who have concurred in the decision of this case, I proceed to state the reasons which have impelled me to dissent from them.
The question involved is, Whether the Legislature have a constitutional right to authorize one man’s property to be seized and sold for the taxes of any other person in whose possession the same may happen to be for the time being, without allowing any redress exce2it an action against the person for whose taxes it may be sold.
I am constrained to say that I have been unable to find any foundation for such a power in reason or authority.
*272Private property may be constitutionally subjected to public control in several ways, in such a manner as to produce great hardship, and in some cases gross injustice. There is doubtless a very extended power to provide regulations concerning the use of property, which may be classed under the somewhat indefinite name of police regulations. I am not prepared to admit even this power to be unlimited, for there are constitutional provisions which limit this, as they do any other discretionary power. Authority also is possessed by the Legislature to enforce forfeitures for breaches of the penal laws, in many cases. But it can not be claimed that the case at bar falls under either the police or the penal laws.
Beyond these the power of the Legislature is confined by constitutional provisions, which an unbroken line of authorities has construed and defined. Private property is recognized as already existing, and as the basis of all governmental action. For its protection, governments are created, and can only exist by preserving it. Our Constitution contains many provisions for its immunity, and in those provisions, as passed upon by courts of justice, will be found, in my opinion, conclusive evidence of the illegality of this legislative usurpation. It has declared that the property of no person shall be taken for public use, without just compensation therefor; that no person shall be deprived of his property without due process of law ; that the Legislature shall provide an uniform rule of taxation except on property paying specific taxes; and that all assessments shall be on property at its cash value. It is unnecessary to go further into the details of the Constitution, for the clauses referred to, as repeatedly construed, are sufficient to dispose of the case.
That property, which is protected by the law, should not in turn be subject in some degree to the duties and charges necessary to maintain the protecting power, no one has ever questioned. Governments can not be maintained without revenue, which must come directly or indirectly from the property and persons under their jurisdiction. Highways and other fácil*273ities for travel and commerce are necessary, and there must be some authority to place them where they are needed. And the public defense frequently requires that government should have a choice of situations for its forts. But except for revenue to carry on the legitimate operations of the public administration, and for the construction. of roads or other public works, no court, and no authority, has as yet discovered any purpose for which private property can be constitutionally appropriated to the public disposal. There is but one other disposal which can be imagined, and that is the taking from one person to bestow it upon another. — Sedgw. on Stat. & Const. L. 533.
At the common law, and under all our Constitutions, the principle has always been recognized that no man can be called upon to contribute more than his regularly and legally ascertained share of the public burdens. Uniformity of- taxation is the only rule which would ever be tolerated in a free country. For this our own Constitution has certainly provided. The very term “ Tax ” signifies a tribute or imposition which is “certainly and orderly rated” (Tomlyn’s L. Dic.), and not an arbitrary or unequal one. Whether the sum to be raised be a State tax, to be levied throughout the State; or a county, town, or district assessment, confined to a smaller territory, the rule of contribution must, in each case, be a proportional one, and conformed to some uniform standard. And where the private property of any person is needed for the public use, this same principle requires, and the Constitution provides, that he shall not bear this appropriation as an additional burden, but that he shall be paid its full value before he can be called upon to part with it: he can not be required to part with it upon public or private credit.— Williams vs. Mayor of Detroit, 2 Mich. 566; Bloodgood vs. Moh. & Hud. R. R. Co. 18 Wend. 18, 27, 35, 37, 76.
The power of government either to take property or to tax it, depends on what is properly called its super-eminent sovereignty, or eminent domain, which, in its broadest sense, *274embraces all the ultimate powers of the State. But in our modem decisions this latter phrase has been more generally confined to the actual taking of property for public use, as distinguished from the other modes of acting upon it. It has been used in both senses by our own Court in Swan vs. Williams, 2 Mich. 427, and Williams vs. Mayor of Detroit, 2 Mich. 560. The powers are all identical in origin, but the distinction is a convenient one, and saves circumlocution. The extent and limits of these powers have been well expressed in the case of The People vs. Mayor of Brooklyn, 4 Comst. 419; which was accepted by our Supreme Court, in the case last cited, as authority upon this subject, so far as not modified by our Constitution. I quote from the language of that decision: “Private property may be constitutionally taken for public use in two modes: that is to say, by taxation, and by right of eminent domain. These are _ rights which the people, collectively, retain over the property of individuals, to resume such portions of it as may be necessary for public use. The right of taxation and the right of eminent domain rest substantially on the same foundation. Compensation is made ■ when private property is taken in either way. Money is property. Taxation takes it for public use, and the taxpayer receives, or is supposed to receive, his just compensation in the protection which government affords to his life, liberty, and property, and in the increase of the value of his possessions by the use to which the government applies the money raised by the tax. When private property is taken by right of eminent domain, special compensation is made, for the reason hereafter stated.” — 4 Comst. 422, 423. “Taxation exacts money, or services, from individuals, as and for their respective shares of contribution to any public bivrthen. Private property taken for public use by right of eminent domain, is taken, not as the owner's share of contribution to a public bivrthen, but as so much beyond his share. Special compensation is, therefore, to be made in the latter case, because the government is a debtor for the property so taken ; *275but not in the former, because the payment of taxes is a •duty, and creates no obligation to repay, otherwise than, in the proper application of the tax. Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of indivduals. Keeping these distinctions in mind, it will never be difficult to determine which of the two powers is exerted in any given case.” — p. 424.
And I may refer to the very strong language of this Court, in 2 Mich. 567, that “Taxation not based upon any ■'idea of benefit to the person taxed, would be grossly unjust, tyrannical, and oppressive, and might well be characterized as public robbery.” And, further: “ Some of the provisions of the Constitution herein before referred to, and several others, were cited by the counsel for the complainant, for the purpose of showing that it enjoins a just principle of equality in regard to all public burdens, and prescribes, as a limit to the exercise of the taxing power, that common burdens should be sustained by common contributions, regulated by some fixed general rule, and apportioned according to some uniform ratio of equality. This may be readily admitted as a just 'and equitable rule. The soundness of such a proposition is too well approved by good sense, and too well supported by the theory of free government and equal rights, to be seriously ■questioned.” — pp. 569, 570.
We are not, therefore, left to doubt in examining into this statute, to determine how it can be justified. If the arbitrary proceedings which it sanctions and requires are not 'sustainable, either as the legitimate exercise of the taxing power, or of the right of eminent domain in its sense as ■above defined, they can not be sustained at gll.
I will now refer to those proceedings for the purpose of applying to them these tests.
Section 822 of the Compiled Laws provides as follows;..
*276“In case any person shall refuse or neglect to pay the tax imposed on him, the treasurer shall levy the same by distress and sale of the goods and chattels of said person, or of any goods and chattels in his p>ossessiooi', wherever the same may be found within his township; and no claim of property to. be made thereto by any other person shall be available to-prevent a sale.” Other sections provide that if the property sold brings more than the tax, the surplus, if any one but the person taxed claims it, shall be deposited in the town treasury until they shall litigate their claims — no provision being made for interest upon it. Section 931 provides that the owner may sue the person whose tax it was taken to jjay, for the value of the property, after deducting' such surplus. No provision is made whereby the owner may save his property from sale by advancing the tax. Section 5008 forbids any action of replevin against the collector. The law provides no remedy in case the person for whose tax it was sold is insolvent, or in case he had a valid defense against the tax.
These provisions have been repealed, and the law, in this respect, has been placed upon a more equitable basis. The question before us is, whether it needed a repeal to invalidate it. That the law, for many years before the official opinion of the Attorney General advised the executive department of its unconstitutionality, was regarded and treated as a nullity in some quarters, at least, of the State, is very well known. But popular usage can not confer or take away constitutional power; and it is not, in a case like this, of much value as an exponent, one way or the other. The powers of the government, in its sovereignty, are based upon a more certain tenure.
Is, then, the taking of property, authorized by this Act, a legitimate exercise of the taxing power? If so, how does the law proceed to affix to this property the liability to be used for the satisfaction of the public necessities?
It has been suggested that the Legislature may, if they see fit, create a lien upon personal property for taxes, and *277tax it specifically as they do real estate; and that, having this power, it follows that they may sell it in the hands of any one. I do not perceive how the conclusion follows from the premises. Whether they have the power to tax personal property specifically as lands are taxed, and create a similar specific lien, is not very material here, in my view of the case. It is enough to say that the State has never seen fit to assert such a power. When the power is claimed and exercised, it will be time enough to test its validity. The Constitution allows the Legislature to exempt property from taxation. In carrying out the purpose of raising revenue, the law, so far as personal chattels are concerned, does not tax the property as such, but taxes the owner for its value, and does not undertake to charge non-residents at all. Unless a non-resident owns real estate, he is not taxable, and in the eye of the law owes no pecuniary duty to the State. This is in accordance with the recognized doctrine of international law, that movables have no locality, but follow the person of the owner, and are governed by the law of his domicil.— Story Confl. L. §§ 379, 380. This doctrine has been too long settled to be questioned, and is distinctly declared by this Court in the case of Sigh, Appellant, 2 Doug. Mich. 515. The State has no right under the Federal Constitution to levy import or export duties (§ 10, Subd. 2); and there are many considerations which would render the attempt to tax the personal property of non-residents highly improper, if not illegal, as the tax might stop it in transitu, and must, in many cases, do so, to be enforced at all, unless the owner had other effects liable to seizure.
This property, therefore, is not seized, and is not liable to seizure, either for a tax levied specifically upon it, or upon its owner. He owes no tax, and the property owes no tax. The law saves us from any ambiguity on this subject. It directs it to be taken only when the tax is against some person, and then in express terms treats it as the property ■of another. The tax when levied against “A.” is to be sat*278isfied by a seizure and sale of the property of “A.,” or of' any property in Ms possession. The law does not even go. through the form of declaring his possession proof of ownership. If it did so, it could not help the case, for it can not matter by what terms a man’s property is divested; whether the Legislature grant it to another, or declare it to be the. property of another. The divestiture is the evil, in whatever-way it happens. Here, in every section, the law recognizes, the property possessed as belonging to the real owner. It forbids his re-claiming it, and gives him an action to recover its value. There is no disguise or circumlocution in the-statute. If justified at all, it must be ‘ upon some ground which will authorize the Legislature to seize the ¡property of' any one to satisfy Ms neighbor’s tax. The law make's no distinction between property rightfully and -wrongfully possessed by the real debtor. And whatever courts may desire, to do, they can not, on any principle of interpretation, confine the effect of these provisions to property lawfully possessed. The provision forbidding a release of the levy has, no exception, and the replevin law has no exception. The. law could have intended none. The only plausible reason for-the enactment of such laws must be found in the supposed difficulty which a town treasurer may have in settling the true ownership of the property. It can not be any easier-for him to determine two questions than one. To give the-law the interpretation referred to, the collector must, at Ms, peril, determine, first, whether the property belongs to anyone but the possessor, and, second, whether such owner has entrusted it to the possessor for any purpose which justifies his continued possession. This construction would not help the collector, while it would justify him, as it now justifies, him, in taking property which he knows, or may know, is. owned by a stranger. The consequences of upholding such a law are certainly extraordinary. To say nothing of unlaw-, ful holding by the person taxed, every traveler whose baggage, is handled by a carrier or innkeeper, every merchant whose. *279goods pass over a wharf or through a warehouse, must be prepared, whether he lives in one State or another — in addition to the usual perils of the sea, the acts of God or the public enemy — to have his effects confiscated for the default of a stranger to whom he owes nothing, and who has obtained no credit on his account; to have them sold at a forced sale away from markets and bidders, and have his only recourse against a man who may be insolvent, who' must generally be fraudulently disposed, and who may have a complete defense to any action whatever. If this is a legitimate exercise of the taxing power, I do not well perceive under which of the qualifications it is to be classed.
Not only is the property seized for a tax not charged against itself or its owner, but it is made liable upon no rule of apportionment. If we accord all the latitude desirable as to the method of apportionment, there must, at least, be some means of certainty in the allotment, to make a tax good. The whole of a man’s property is often in the hands of a bailee. A merchant’s or emigrant’s goods may be so held, up to the last dollar he owns. Under this law, whether the amount be small or great — whether the whole or the half, or a mere trifling percentage of its owner’s means' — it is equally liable to confiscation.
The whole basis of the right of taxation, as laid down by the authorities, is wanting in this Act. There is neither duty, benefit, nor apportionment. It is but the excess of arbitrary power. That it is done under a general statute can not ameliorate its character. A law authorizing property to be taken for private roads, was not the less an invasion of the Constitution, because any one might have a road laid out.— Taylor vs. Porter, & Hill, 140. The Legislature could not evade the necessity of paying for land used for railroads, canals, or highways, by general laws for their organization. It could not legalize an invasion of due process of law by authorizing every citizen to be judge, jury, and sheriff in his own case, to do what was right in his own eyes. The Con*280stitution was not designed to protect private property from only one species of attack: it was meant to keep the Legislature from violating it in any way whatever. The case of Hibbard vs. The People, 4 Mich. 125, is authority, if any is needed, that the general nature of a law can not exempt it from the prohibitions of the Constitution against invasions of private right. The claim that the public necessity must override all minor considerations is inadmissible in a constitutional government. That there is no absolute and overruling necessity has been determined by the Legislature in repealing the Act. But no necessity whatever can justify a violation of the Constitution. In cases where the Legislature have unlimited discretion (if such cases exist), no plea of necessity 'is needed, and the courts have nothing to do with the hard' ships whieh may arise. Laws which are within the legislative discretion, must be enforced without question.
If this case does not come within the taxing power, we must advert to the power to take private property for public use.' There is certainly a talcing here. The law authorizes the officer to seize the property bodily, and to sell it; and he has followed the law. But it would be almost a waste of words to examine at length whether this is a taking for public use authorized by the Constitution. Where property is taken for public use, it must be a use of the property itself, for the public purpose, either temporary or permanent. Sometimes it may be a destruction of it, as of a house which obstructs a fort or highway; but more generally it is the use of the specific thing, as of land for a road, or gravel for its completion. But when property is taken, not for use, but for sale, such a taking is justifiable on no such ground. — West River Bridge Co. vs. Dix, 6 How. 544, et seq. (Opinion of Woodbury J.); Williams vs. Mayor of Detroit, 2 Mich. 566. And a comparison of the three clauses in our Constitution which govern on this subject, will show that the property liable to be taken must generally, if not always, be real estate. The taking must (except in the case of private roads), *281be for some purpose in which the public are all alike entitled to enjoyment. — Swan vs. Williams, 2 Mich. 427. I have already referred to the necessity of previous compensation.
This taking is not a taking for public use. It is in effect a taldng for private use, so far as its benefits go. The property seized is to be sold to pay the debt of another person. Its proceeds cancel his debt to the State. He is liable to make compensation for it — not, however, a previous compensation, but such as may ensue upon a lawsuit of doubtful Validity, against a debtor of doubtful solvency. Authorities are unnecessary to show that no such power exists in the Legislature. If a sheriff, upon a private claim, were authorized to do what the town treasurer may do under this law upon a public one, no one would hesitate a moment to condemn the law as void. When the Constitution, which was created to define the powers of government, and not leave us to any tender mercies of parliamentary omnipotence, undertakes to protect private property, it can not be competent for the Legislature, by giving its own definitions, and calling that due process of law which condemns without a hearing, and robs without redress, to evade the rules made for its guidance. The Constitution, when referring to property, must, according to the usages of the civilized world, use the term in its commercial and legal sense, which derives its Whole value from its merchantable qualities. As ships “ are built to plough the sea, and not lie by the walls,” so personal property is made to sell and exchange from hand to hand, and bo transported from one region to another. Our lumber would be useless in the woods, and our grain in the fields. The owner can not retain manual possession of it, but must entrust its transmission to those who are, not only by custom, but by law, recognized as proper agents for that purpose. And that protection is a mockery which removes the aid of the law the moment the necessity of that aid is created by the entrusting of such property to customary agents. I am not disposed to question the right of the Legislature to *282issue this summary warrant to collect any lawful tax. The warrant is not objectionable merely because it is summary. But there never was any warrant of distress issued to collect a tax charged against any one personally, whereby any property except that of the crown debtor could be seized. The distress warrant for th^t purpose was a mere execution, required by Magna Charta to be satisfied, first, out of the goods and chattels of the debtor, and, in default of those, by extent upon his real estate. His pledges could not be pursued until the remedy had been used against him. The term distress, applied to the warrant, had no similitude to the feudal distress for rent, either in reference to the seizure of property or its disposal. And that clause of the Constitution which forbids the seizure of property without due process of law, can not be so construed as to leave the Legislature free to devise any new process at its will. — > Murray’s Lessee vs. Hoboken Land Co. 18 How. 272.
I am of opinion, for these reasons, that the Act of the Legislature under which the property in question was taken, was void, as in conflict with the Constitution. It is void, if enacted under the taxing power, because the property was not taken for any tax levied against its owner, or on the property itself: it is void if taken for any other purpose, because' not taken for public use, or upon just compensation. It is taken for no penal offense, and for no violation of any police regulation. It is taken upon no judgment or other claim against its owners. I can imagine no other legal ground upon which it could be so taken; and no reason has been presented which, to my comprehension, removes this statute from the class of unauthorized and arbitrary invasions of constitutional right. If such laws can be maintained, I can see no limit to the power of legislatures. I am not prepared to submit to any such doctrine.
It is, I admit, much to be lamented that courts are so often called upon to decide constitutional questions. I think the evil exists in the occasion for raising them, and not in *283their being raised. If there is any strife between legislatures and courts on this subject, the encroachments have not come from the courts. Hasty and careless legislation has done much to unsettle the laws of property; and if courts have erred at all, it has been in seeking excuses for well-meant but unauthorized attempts to subject principles of law to some imagined expediency. Courts have no right to set aside laws upon their own notions of propriety, if they are constitutional. But every unconstitutional law which is made to stand, creates a permanent and deadly evil, by overturning the only safeguards which we possess against public usurpation.
I think the judgment below should be reversed.
Judgment affirmed.