The Opinion of the Court was delivered by
Caton, J.The first section of the Act of the 25th of February, 1847, under which all the defendants in the Court below justified, authorized the levy of a special tax upon all the taxable property in Rockford precinct, “for the purpose of repairing and maintaining the bridge across Rock River, at Rockford, and to defray the debt incurred in its erection, and repair; said tax not to exceed fifty cents on one hundred dollars of taxable property.” In the second section, two-of the defendants, Shaw and Wyman, and two other persons, are appointed “Bridge 'Commissioners of the Rockford Bridge,” and they and they and their successors are made a body corporate and politic, and are vested with the power to declare the amount of tax to be levied, and are required to make out and deliver to the Collector of Winnebago county, a list of all persons liable to taxation under the Act; such list, together with the amount and valuation of taxable property “to be taken from the last assessment of taxable property in said county,” and the commissioners were required to deliver to the Collector a warrant for the collection of the tax. This second section also authorized the Commissioners, with the proceeds of the tax, to keep the bridge in repair, and to discharge past indebtedness, if they thought proper; previous to the payment of such debts, however, the Commissioners are required to settle and state all the accounts in relation to said bridge. These two first sections only are set out in the pleas, nor is it material to notice the balance of the Act.
First, it is objected that this Act is unconstitutional, because it imposes a tax upon Rockford precinct to pay the private debts of individuals, incurred in the erection of this bridge. The particular portion of the Constitution supposed to be violated, is not pointed out, even admitting that the tax was to be assessed as supposed. But it does not appear, either from the Act itself or from this record, whether the “past indebtedness” referred to in the Act was due from individuals or from the public. But admitting the fact to be as stated upon the argument, that individuals had become personally responsible for debts incurred in the construction of this bridge, we have no doubt that the Legislature had a right to impose a tax upon the precinct to provide for the payment: It will hardly be denied that the Legislature has the right to impose a local tax upon a town or city, a precinct or county, for some local improvement, as the erection of a bridge, or the repair of a road. In doing this, to be sure, it cannot say that one man shall pay all and the others none, or that one shall pay one dollar, and another ten, for the tax must still be uniform, and upon the value of the property which each one has, so that the burthen presses alike upon the whole community. But the Legislature must necessarily have the right to say how large that community thus subject to the tax shall be, whether a city or only one of its wards, or a precinct, a county, or the whole State. If the Legislature had the right to impose this tax to build a bridge, it would be equally lawful to purchase one, or to pay for one already constructed for the public accommodation. But this not a case of first impression. Thomas v. Leland, 24 Wend. 65, is, in fact, a much stronger case than this, and fully answers the objection now made. There certain citizens of the city of Utica had'executed their bond to the State to pay into the treasury $38,615, to defray the extra expense of terminating the Chenango canal at that place. Subsequently, the Legislature passed a law imposing a tax upon the owners of real estate in Utica for the purpose of paying that bond. This law the Supreme Court held to be constitutional, upon the ground that the money had been already expended in the construction of a public work, by which the owners of such real estate had been especially benefited. Even admitting, as counsel suppose, that the Constitution of New York does not prohibit the Legislature from exercising judicial powers, it in no wise weakens the authority of this case, for the imposition of a tax for a specified purpose is in no sense the exercise of a judicial power, but it is purely and strictly legislative.
But ^is said that in the Act before us the Legislature has found and determined the existence of a debt, and thus trenched upon the powers exclusively conferred upon the Judiciary. This Act bears no analogy to those upon which the decisions referred to were made. The most that can be said of this Act is, that it assumes that there may be debts unpaid which were incurred in the erection or repair of this bridge, but it does not undertake to determine their nature or amount, or to whom due, or from whom. All of this is referred to the Commissioners, to ascertain and determine; nor even then, does the Act make it imperative upon them to pay such debts.out of the proceeds of such tax. Whatever there is involved in this Act of judicial power, or even of discretion, is vested in the Commissioners, and is not attempted to be exercised by the Legislature. Indeed, in no part of this Act can we discover the remotest attempt on the part of the Legislature to exercise judicial powers.
There is another objection urged to the validity of this law. The Act directs the Commissioners, in determining who is liable to pay said tax and the amount each shall pay, to be governed by <£ the last assessment of taxable property in said county. ” It is insisted that this is an unjust criterion, for a man might have disposed of all the t axable property assessed to him in the last assessment before this tax was actually declared by the Commissioners. This objection is more refined than practical, and if allowed, would at once annihilate the power of taxation. The assessment of the tax and the valuation of the property, are never simultaneous acts. The county tax is assessed, as declared by the County Commissioners’ Court at their March term, and the assessment of the valuation, and owners of the taxable property need not be completed till September following. Under this system the same injustice may be committed, for a man may be compelled to pay a tax for a whole year on property which he has. only owned for a single day. Indeed, the same horse may be assessed to two different individuals for the same year, for each might own him at the time the assessor takes the list of his property, and yet a third person may have owned him at the time thé Sx was actually imposed. In the same way other property might go unassessed altogether. In the imposition of taxes, exact and critical justice and equality are absolutely unattainable. If we attempt it, we might have to divide a single year’s tax upon a given article of property among a dozen individuals who owned it at different times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The Legislature must adopt some practical system, and there is no more danger of oppression or injustice in taking a former valuation,- than in relying upon one to be made subsequently. We have no doubt but this Act is clearly within legislative power and must be enforced.
- It is further objected, that these pleas do not show that ■ ten days intervened between the time when the demand was made for the payment of the tax, and the time of the levy or distress. This objection assumes that the Collect- or in the execution of the warrant for the collection of this tax must be governed by the provisions of the general revenue law. But there is as much propriety in saying that he should be governed by the provisions of section 8, chapter 25, Rev. Stat., which provides for the collection of taxes in incorporated towns where a demand previous to the levy does not seem to be required. The case of the tax before us assimilates much nearer to- these local corporation taxes than to the general revenue of the State, But admitting the applicability of the provisions of the general revenue law, and we do not think the objection well taken. By section 32, chapter 89, Rev. Stat., the Collector, on receiving the assessment list, is required to proceed to collect the taxes charged in said list, by calling upon each person residing in said county at his or her usual place of residence, and requiring payment thereof. Sec. 34 provides that the Collector^ in case of the absence from home of the tax-payer, shall leave a written or printed notice with some member of the family^ requiring payment of the tax within ten days of th® date of the notice, and that said notice shall be deemed a sufficient demand for the taxes of such person. And the 25th section is as follows : “In case any person shall refuse or neglect to pay his or her taxes when demanded, or within ten days thereafter, it shall be the duty of the Collector to levy the same together with the costs and charges that may accrue by distress and sale of the personal property of sucli person as ought to pay the same wherever the same may be found in the county. No real estate of any person shall be sold for taxes, while personal property of such person can he found by the Collector. ” We are of opinion that this section does not inhibit the Collector from making the distress till after the expiration of ten days from the demand, where the demand is personal as required by section 32, but leaves it discretionary with him to make the distress or not within that time. Were we to adopt any other construction, the demand made by the Collector would but afford facilities to the tax-payer to defraud the revenue, and the Collector might be compelled to stand by powerless, and see the party remove his property without the State with the avowed purpose of avoiding the payment of the tax. Such an intention ought not to be imputed to the Legislature, unless it is clearly indicated by the language used. Here the statute makes it imperative upon the Collector to make levy at all events, if the tax is not paid v/ithin ten days after the demand, but contains no intimation that he may not make the levy before that time. The language is so imperative, that if he does not make the levy as soon practicable after the ten days have expired, he would be responsible for any loss which might accrue by reason of such neglect, and the County Commissioners would be authorized to withhold a credit for such delinquent tax, where it might have been been made by a prompt levy. In case a personal demand is not made, but the notice is left as is required in section 34, then the demand may be considered as incomplete till the expiration of the ten days within which, by the terms of the notice, the party has to pay the tax.
It was also objected on the argument, that the warrant as stated in some of the pleas, was not issued by all the Commissioners. A careful examination of the record will show that the demurrers do not raise this question. A joint demurrer is filed to the second and third pleas in each set of pleas, and as the second pleas are not obnoxious to the objection taken, we cannot say, in the language of the demurrers, “ that the said second and third pleas are not sufficient, ” &c. As the question is not raised, we do not choose to decide it. Although, as the Commissioners are by the Act made a corporate body, which may act by a majority of the corporators, and as the issuing of the warrant was a corporate act, it would seem to follow that the warrant was well issued by the majority.
Note by the Reporter. — After the decision in this case ' was pronounced, the counsel for the defendant moved the Court for an order directing the Circuit Court to grant leave to withdraw the demurrer, and to plead to the declaration.The judgment of the Circuit Court is reversed with costs and the cause remanded.
Judgment reversed.
Treat, Ch. J.said that such an order was unnecessary; that, upon the case being remanded to the Circuit Court, the case would stand as if it had not been in this Court, and the pleadings would be subject to the order of that Court.
Trumbull, J.said that the judgment of the Circuit Court was reversed because the demurrer had been improperly sustained; that upon the case going back to that Court, the party would of course be entitled to withdraw his demurrer and plead over. It is for this purpose that the cause is remanded.