dissenting:
I am unable to concur in the conclusion announced by the majority of the court in this case, and shall give á few of the reasons which induce me to dissent.
To my mind, there is no proposition that is plainer than that, in organizing our State government, in the exercise of the taxing power it was intended to limit it, under all circumstances, at all times and for all purposes, to valuation and uniformity in its imposition and collection. That this was the principle adopted and intended to be enforced, is, I think, manifest from the various provisions of the ninth article of our constitution. The first section of that article specifies two classes of taxes—one levied on property and required to be determined by valuation, so that each person or corporation shall pay taxes in proportion to the value of his, her or its property; the other is authorized to be imposed on specified persons, callings or business, to be uniform as to each class, and to be imposed by general law. All other kinds of taxes for State purposes are required to be imposed in such a manner as to conform to and be consistent with the principies of taxation fixed in that instrument. Thus, we see the power in raising State revenue is expressly limited, when imposed on property by valuation, on persons, callings or business, by uniformity; and when on other objects and subjects not enumerated, the second section requires it to be in conformity to the same principles. These provisions render it absolutely indispensable that uniformity and equality of burthen shall be observed in such cases.
To enforce these principles beyond all possibility of doubt, the 6th section provides that “ the General Assembly shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes to be levied for State purposes, nor shall commutation for such taxes be authorized in any form whatever,”—thus, as far as language can express the intention, prohibiting any other than uniformity to be adopted. This is manifestly true of taxes levied for State purposes.
The 9th and 10th sections of article 9 require, in express language, that in levying taxes for municipal purposes they shall be uniform in respect to persons and property within the jurisdiction of the body imposing the same. This principle is announced most emphatically with reference to these taxes. The constitution, then, imposes these terms and conditions in express language upon all but special taxes on contiguous property to make local improvements. The same rules were always required in making special assessments, and had become a fixed rule of our courts long before the adoption of the constitution, and the term special assessments must have been used by the framers of that instrument as it had been defined by the courts. Uniformity and valuation, then, being the rule, how can it be reasonably supposed that there could have been an intention to depart from it in levying special taxes ?
Under the constitution, in all other places, and for all other purposes, the word tax implies a sum of money levied for public use, on valuation or uniformity, and how can we presume, in this single instance, it was intended to be used in a different sense ?
The same reasons apply for guarding the rights of the citizen from oppression and wrong, in levying a special tax for this purpose, as in levying a State or a municipal tax. Why should the owner of property adjacent to the improvement be left to the imposition of an arbitrary burthen for the benefit of the public, whilst property of all other citizens is protected? Shall he be liable to be despoiled of his property, or subjected to great if not ruinous burthens, simply because the constitutional convention failed—it may be, through inadvertence—to add at the end of the clause, “ but such taxes shall be uniform in respect to persons and property ?” It is sufficient that the rule was not dispensed with in terms, or by clear implication. Shall we, even if it can be said this clause is doubtful, construe it most unfavorably to the protection of the rights of the citizen, when the improvement is made for the benefit of the public? Shall we say that he may have such burthens imposed when all others are protected in their rights?
We should not adopt a construction that must work injustice, unless the language manifestly requires it, in the enforcement of a provision of the constitution or a statute. The more benign and just interpretation should always prevail. This is a rule that has always obtained, and was adopted to prevent injustice, wrong and oppression. And I think that this provision should be construed in harmony with the other provisions of the constitution. I can see no reason why it should not, as the language or justice do not demand it.
The power to levy and expend taxes is liable to more and greater abuse than any other. Hence the. effort by the convention to bring it within such rules and principles as would prevent unjust oppression. And in all cases but a special tax for a local improvement, they seem to have succeeded, as far as human agency is capable of accomplishing such a purpose.
Can we suppose the framers of the constitution intended to limit the General Assembly and corporate powers to the rule of uniformity, and leave the authorities of cities, towns and villages without any control but their will ? Why distrust the General Assembly and the corporate authorities of municipalities, and compel them to act within prescribed limits, and leave the officers of cities, towns and villages with uncontrolled power in levying special taxes? I can see no reason why they should be trusted with unrestricted power in this, and compelled to observe rules of uniformity in levying taxes for other purposes. I am unable to comprehend why the word tax, when qualified by the word special, should have attached to it a different operation, or imply a different mode of levy from the term as defined by the framers of the fundamental law. In all other cases the term tax is used in the sense of uniformity or of valuation. And every reason requires that the same rule should apply to a special tax, and I can conceive none that is opposed to it. I am, therefore, clearly of opinion that no well founded distinction can or should- be taken.
If the General Assembly may authorize the construction of sidewalks in this mode, the grading and paving of streets in cities and villages and the construction of roads and bridges in incorporated townships may be so authorized. And who will say they may not authorize the erection of engine houses, town halls, and all other local improvements in the same manner. They are all local improvements, and no more for public use than sidewalks.
And if these improvements may be made in this manner, all can see that in many instances it would operate to confiscate the property of the unfortunate owner, if it happened to be adjacent to the local improvement. Suppose such authority conferred, and an ordinance passed to grade a street requiring deep cuts and heavy fills, and expensive protection walls, and to be paved with stone or wooden blocks, and the ordinance imposed the whole cost on the adjacent property,—or suppose in an incorporated township an ordinance should, under such authority, require a road or all of the roads to be graded, bridged and McAdamized, and the cost should be imposed on the adjacent lands,—do not all see that this would be ruinous to the unfortunate owners of the farms?
Even as the law now stands, there is no limit as to the character of materials to be used, or .of the cost of the construction of the improvement. If the lot is of little value, of considerable frontage, and the structure is to be of the most costly character of curbing and of dressed flag-stones, any one can see that the improvement may equal or even exceed the value of the lot, especially if not in the highly improved portion of the city or village. Or suppose, under the law, a farmer whose quarter-section adjoins a highway on two sides should be required to construct an expensive sidewalk along his entire frontage, does not every one see that the construction of a mile of such sidewalk would be highly oppressive? But it may be answered that a sense of justice would restrain the authorities from perpetrating such flagrant wrongs. The convention in its wisdom were unwilling to trust to their sense of right'in the imposition of all other corporate burthens, and even limited and controled the power of the General Assembly in the imposition of taxes. When it is learned that these desirable but expensive public improvements may be made at the expense of the few, and the great body of tax-payers escape, we may well fear that the power will be increased and its exercise will be greatly abused.
Again, the authorities are empowered by this act to recover the cost by an action of debt against the adjacent property holders, thus enabling the authorities of these bodies, if the property will not pay the cost, to collect the balance from other property." If the law is sustained I fear that but a portion of the great evils the framers of the constitution intended, to avert will continue unrestrained. The tendency of government is to the abuse of power, and hence the necessity that is constantly pressing for new constitutional limitations and restrictions upon its exercise.
The provision authorizing the apportionment of the cost on adjacent property in proportion to the superficial area of lots or lands, ignores every principle of equality and uniformity of burthen. Suppose two persons own adjoining lots, each of equal frontage, but one double the depth of the other, is there any justice in saying the lot of double the depth shall pay double the amount of the other towards the structure ? It may possibly be that the larger lot is worth double that of the smaller, but the chances are greatly in favor of the contrary. It may be worth no more than the other. The question of value, does not necessarily depend on mere quantity, but a great number of' other circumstances must be considered to determine it.
If it be asked how this special tax on adjacent property can be levied in any other mode, it may be answered that local or special districts or divisions may be formed and the tax assessed at a uniform rate on all the property in the division. There is no practical difficulty in requiring a sidewalk to be laid on both or either side of the entire length of a street, or even on a square, or either or both sides of the street, and to assess a tax to pay the cost of the structure on the adjacent property in the entire division. Suppose it is determined to lay a sidewalk on one side of an entire street, or in front of one or more squares in the street, should not all the adjacent property be taxed in proportion to its value to produce a fund to pay the cost? Could an ordinance in such a case be sustained which should specifically charge the entire cost of the walk in front of each lot upon it? The improvement in such a case is entire in its nature, and the fund should be on all the property for its payment, and raised on the principle of valuation and uniformity.
If it be asked why the words “or otherwise” were inserted at the end of the clause, I will say the previous portion of the clause had named two modes of making such improvements: one by special assessment, and the other by a special tax on adjacent property. These words were, therefore, inserted to exclude a conclusion that these were intended to be the only modes. It was manifestly to permit these bodies to make such improvements with unappropriated means in the treasury, by a tax general within the limits of the corporate body, or with money received on the commutation for road labor, and by any other practicable means authorized by law. This, to my mind, is the reason, and ‘the only reason, for inserting these words.
Other portions of'the act, I think, are obnoxious to constitutional objections, but not being presented by this record, I shall not stop to discuss them. In my judgment the portion of the statute which authorizes this proceeding is manifestly unconstitutional and void.
Scholeield and Mulkey, JJ.: We also dissent from the views of the majority of the court, and concur in the foregoing.