T 
 
 Hoi 
 
 THE LIBRARY 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 THE POWER OF SPECIAL TAXATION
 
 A TREATISE ON 
 
 THE POWEK OF SPECIAL TAXATION 
 
 A CRITICAL ANALYSIS OF SPECIAL TAXES FOR LOCAL 
 AND PUBLIC IMPROVEMENTS, CONSIDERED WITH 
 REFERENCE TO THE CONSTITUTION, STATE 
 AND FEDERAL, AND THE RESTRIC- 
 TIONS THEREIN CONTAINED 
 
 BY HENRY N. ESS 
 
 of the Missouri Bar 
 
 KANSAS CITY, MISSOURI. 
 
 PIPES-REED BOOK CO. 
 
 1907.
 
 Copyright 1907 
 BY HENRY N. ESS. 
 
 T 
 
 Press of 
 
 E. W. Stephens Publishing Co. 
 
 Columbia, Mo.
 
 TO 
 
 JOHN H. LATHROP, 
 
 SOMETIME PRESIDENT OF THE UNIVERSITY OF MISSOURI, 
 
 MY NOBLE AND DISINTERESTED PRECEPTOR; 
 
 FRIEND AND COUNSELOR IN EARLY LIFE WHILE 
 
 I WAS A POOR COUNTRY BOY, 
 
 IN MEMORY OF THE PRICELESS SERVICES HE RENDERED 
 
 ME AND OTHERS IN THE PERFECT PERFORMANCE 
 
 OF HIS DUTY AS TEACHER, 
 
 FRIEND AND COUNSELOR IN MY LIFE WORK, 
 
 I DEDICATE THIS BOOK. 
 
 (iii) 
 
 729517
 
 TABLE OF CONTENTS. 
 
 CHAPTER 1. — Restraints Implied from the Nature of Free Gov- 
 ernment 1 
 
 CHAPTER 2. — Local Taxation in Connection with the Exer- 
 cise of the Power of Eminent Domain 18 
 
 CHAPTER 3.— Personal Liability for a Local Tax 53 
 
 CHAPTER 4. — Effect of the Decision in City of St. Louis to 
 
 use of Seibert v. Allen, 53 Mo. 44 62 
 
 CHAPTER 5.— Theories of Taxation 84 
 
 CHAPTER 6. — Power of Taxation a Part of Sovereignty 131 
 
 CHAPTER 7. — Power of Government as to Property, Benefits 
 
 and Damages 155 
 
 CHAPTER 8.— Changes in Judicial Rulings 169 
 
 CHAPTER 9. — Our Constitutions in the Light of the History of 
 
 the States 226 
 
 CHAPTER 10. — Some Comparisons 250 
 
 CHAPTER 11.— Further Changes 260 
 
 CHAPTER 12. — Results— Inconsistencies 277 
 
 CHAPTER 13. — Existing State of Constitutional Law and Rem- 
 edies Proposed 291 
 
 CHAPTER 14. — Reasons which Prevent Judicial Interference 315 
 
 CHAPTER 15.— Conclusion 359 
 
 Table of Cases 377 
 
 Index 385 
 
 (iv)
 
 PREFACE. 
 
 There are very few persons in the United States, 
 who understand and fully appreciate the fact that the 
 power of local taxation of real estate in our cities,towns 
 and villages is absolutely without limit except the 
 whole value of the land taxed and the whole value of 
 all houses and other improvements thereon. 
 
 In its origin on the original theory on which it was 
 founded, the money raised by local taxation was applied 
 to the benefit of the person and property taxed. The 
 benefit to the person and property taxed was equal to 
 or greater than the amount of the tax. This is given as 
 the sole reason for compelling the owner of real estate 
 to pay for work and material which he did not want and 
 for whch he made no contract or agreement. 
 
 Before the citizen can be compelled to give up his 
 property in the interest of the public good under any 
 legislative act, the evidence should leave no reasonable 
 doubt as to the fact, the character and amount of bene- 
 fit. The evidence should be the same as that required 
 to prove a resulting trust. The unlimited power of the 
 English Parliament should not have been given to our 
 city councils. But our city governments in the United 
 States have and exercise greater power. No Parlia- 
 ment in England from Eunnymede to the present hour 
 has ever yet undertaken to make an actual damage a 
 real benefit. 
 
 (V)
 
 vi Preface. 
 
 Our city councils should not be compelled to serve 
 two masters having opposing interests, one master be- 
 ing the abutting property-owner and the other, the bal- 
 ance of the public. Our common councils are not judic- 
 ial tribunals to hear and weigh impartially the evidence 
 offered and render a judicial decision on notice and 
 hearing. No man can serve two masters. This prin- 
 ciple is deeply imbedded in human nature. It was the 
 divine judgment of Jesus Christ, enunciated more than 
 eighteen centuries ago. It is a source of deepest re- 
 gret that our American courts should dare to reverse 
 this judgment of Jesus Christ. His decision has been 
 effectually overruled by all our American courts. We 
 no longer make i^arks, boulevards, pavements ; we now 
 make money. The park, the boulevard, the streets, are 
 the mere by-products of our moneymaking. 
 
 Grading a street may be a benefit or a damage to 
 abutting property. The tax is levied and the tax-bills 
 issued after the work is done. We do not grade streets 
 under the tax-power. If the grading cause a damage, 
 that damage is done before the levy of the tax or the 
 issue of the tax-bills. 
 
 The tax-power can not make that a benefit which 
 was and is a damage. The street is just as good to 
 travel on without the tax-bill as with it. The tax-bill 
 ordinance does not make the street any better to travel 
 on. 
 
 Keating v. Skiles, 72 Mo. 97 (A. D. 1880) ; Keating 
 V. City of Kansas, 84 Mo. 415 (A. D. 1884) ; Keith v. 
 Bingham, 100 Mo. 300 (A. D. 1889) ; Smith v. Kansas 
 City, 128 Mo. 23 (A. D. 1894) ; and McQuiddy v. Smith, 
 67 Mo. App. 205 (A. D. 1896), were all grading cases.
 
 Preface. vii 
 
 Keating graded Bell street to the benefit of adjoin- 
 ing lots and of the City of Kansas and he failed to re- 
 cover from the lotowners and from the city. While in 
 Keith V. Bingham, 100 Mo. 300, the contractor's as- 
 signee recovered on the tax-bills notwithstanding the 
 fact that the grading damaged the lot and just com- 
 pensation for such damages was not paid. Where the 
 grading was a benefit the contractor could not recover ; 
 where it was a damage he could. 
 
 In Smith v. Kansas City, 128 Mo. 23, Mrs. Smith 
 recovered $2,750 against Kansas City because the grad- 
 ing damaged her property that much, while in McQuid- 
 dy V. Smith, 67 Mo. App. 205, the contractor recovered 
 against Mrs. Smith $300 for the same grading, the 
 grading being a benefit in the tax-bill suit. 
 
 The graded street may be better or worse to 
 travel on than the ungraded street, but the tax-bill does 
 not make it any better or any worse to travel on either 
 to the public or the abutting property-owner. 
 
 The American constitutions (state and national) 
 have imposed certain restrictions on the powers of the 
 government. These restrictions apply to all branches 
 of the government, executive, legislative and judicial. 
 
 Private property shall not be taken or damaged for 
 public use without just compensation, and such compen- 
 sation shall be ascertained by court and commission- 
 ers, or by court and jury, and this just compensation 
 shall be paid in advance. 
 
 Of course this is not a restriction on the tax-power 
 eo nomine. Certain things are prohibited from being 
 done. The things are prohibited, not the names. The 
 state legislatures do the things they are prohibited
 
 viii Preface. 
 
 from doing and then tax the injured persons and prop- 
 erty to pay for doing the prohibited things. This is 
 done in the interest of the public and against the per- 
 son and property designed to be protected. May the 
 state legislatures authorize cities, towns and villages to 
 do the things the state constitutions prohibit them from 
 doing and then tax the injured person and property 
 (the very person and property designed to be protected 
 by the restriction) for doing such injury? 
 
 Now, all such constitutional restrictions have 
 ceased practically to be such restrictions or prohibi- 
 tions, and have become provisions authorizing state 
 legislatures to enact laws enforcing the prohibited 
 things and then authorizing local taxes to pay for doing 
 the prohibited things. Such tax laws are constitution- 
 ally valid notwithstanding the acts done are in plain 
 terms prohibited. On the same principle, legislatures 
 may enact laws for doing all other prohibited things and 
 then enact laws for local taxes (or general taxes) to pay 
 for doing such prohibited things; such local taxes are 
 held constitutionally valid notwithstanding the acts 
 done (for which such taxes are levied) are prohibited in 
 plain terms. Here is a distinct prohibition. This is 
 quite different from a mere want of authority. If the 
 Legislature may do one prohibited thing and tax locally 
 the injured i)erson and property designed to be pro- 
 tected, then the Legislature may do all the acts prohib- 
 ited and tax the injured person and property to pay for 
 them. 
 
 In the American states all constitutional barriers 
 have been swept away, as much now as in the days of 
 the French Revolution, when the Dantons, the Robe-
 
 Preface. ix 
 
 spierres and the Marats were in the zenith of their 
 l>ower. Tax-bills are now in the same condition as mu- 
 nicipal bonds. Although the bond is a contract, the 
 tax-bill is not; but it is founded on contract— the con- 
 tract to do public work. 
 
 The public work contracted to be done may be ruin- 
 ous to the property taxed and to the property-owner, 
 yet the tax-bills issued for doing this injury are sacred 
 constitutional obligations and valid to all intents and 
 purposes in the hands of the original wrongdoer. Our 
 state constitutions rival the constitution of Hell and far 
 exceed it in iniquity. I do not believe that the framers 
 of our state constitutions ever intended that the prop- 
 erty-owner should be taxed to pay for damaging his 
 own property. 
 
 In the establishment of this judicial iniquity, all 
 sorts of thrusts, insinuations and innuendoes are in- 
 dulged against those who oppose or even question the 
 enforcement of such unrighteous laws and ordinances. 
 The vilest epithets known to the language are applied 
 to them. Those who favor the iniquitous system are 
 enterprising; they are public spirited; they aim to ac- 
 complish the public good. They deify the public good. 
 That which they take to be good is really bad. The 
 French Rovolutionists deified a strumpet for the God- 
 dess of Liberty. We have followed their example. The 
 Devil always makes a good argument (i. e., apparently 
 good). But in the American tax-bill the Devil has 
 fairly outdone himself. 
 
 The courts have authorized and sanctioned combi- 
 nations of the few, the powerful in finance and intellect 
 against the weak deserving protection against those un- 
 suspecting.
 
 X Peeface. 
 
 Veiy many times the suspicions of the multitude 
 are justifiable: That public office is a private snap; 
 that it confers on the officeholder the right to sell his 
 vote to the highest bidder for cash in advance. 
 
 "We must return the Scotch verdict: '^Guilty, but 
 not proven/' Quo Vadimus? 
 
 In the rapids of Niagara approaching the Falls 1
 
 THE LAW OF LOCAL TAXATION.
 
 THE LAW OF LOCAL TAXATION. 
 
 CHAPTER 1. 
 
 RESTRAINTS IMPLIED FROM THE NATURE OF FREE 
 GOVERNMENT. 
 
 On the subject of local taxation, or assessments for 
 local public improvements, we have varied statutes in 
 every state, varied and contradictory, and inconsistent 
 decisions thereon. The Bill of Rights in our state con- 
 stitutions is substantially the same. We here consider 
 local taxation with reference to only one provision of 
 our Bill of Rights and that is : 
 
 ' ' Private property sliall not be taken or applied to 
 public use without just compensation" (with the addi- 
 tions made to it in the Missouri Constitution of 1875). 
 
 I shall not call the subject-matter ''eminent do- 
 main," or ''a condemnation proceeding" for that would 
 in the writer's opinion narrow the meaning intended 
 by the framers of the Constitution. The f ramers of the 
 Constitution evidently intended to prohibit a thing and 
 not a name only. I omit the other (perhaps broader) 
 provision, ''No person shall be deprived of life, libei'ty 
 or property without due process of law. ' ' No substan- 
 tial verbal change has been made in the first provision 
 and our reasons or suggestions will be confined mainly, 
 almost entirely, to that provision. The language of 
 the other provision has been changed. It was formerly 
 thus: 
 
 "Nor shall the accuser] he deprived of life, liberty 
 or property without due process of law," seemingly 
 aimed at prosecutions for crime, and seeming to indi- 
 
 (1)
 
 2 Law of Local Taxation. [Chap. 1 
 
 (•ate that if the person was not the accused he was not 
 entitled to life, liberty or property. Hence, seemingly 
 an honest man was not entitled to life, liberty or prop- 
 erty, especially if we apply the maxim, "Expressio 
 unius, exciusio alt ei ins." In many of the decisions, 
 the constitutional validity of various statutes is dis- 
 cussed without clearly and distinctly '^ putting the fin- 
 ger" on the particular provision of the Constitution 
 with which the statute may be said to be in conflict, and 
 without showing clearly and distinctly how or why 
 there is a conflict. In some cases statutes are alleged 
 to be in contravention of one section or clause of the 
 Constitution, or Bill of Rights, and the decision is that 
 the statute is not in conflict with that clause of the Con- 
 stitution or Bill of Eights. When the same statute is 
 alleged to be in conflict with some other section or 
 clause of the Constitution or Bill of Rights, then the 
 former decision is held binding and conclusive although 
 the point was not raised or discussed by court or coun- 
 sel. It seems in many cases to be considered that if 
 the constitutional validity of a statute is called in ques- 
 tion on one ground, and it is decided that the statute is 
 valid on that ground and as against such objection, then 
 the decision is construed as settling its constitutional- 
 ity on all possible grounds. In this way these whole- 
 some provisions of our Bill of Rights have been nar- 
 rowed by judicial decision until now it may be fairly 
 said that in local taxation the legislative power is not 
 governed by the Constitution or the Bill of Rights. 
 
 In Wells V. Weston, 22 Mo. 384 (decided in 1856, 
 under tax levied in 1851), an act of the state Legisla- 
 ture purported to authorize the city authorities of Wes- 
 ton to levy a tax of one-half of one per cent on all the 
 real estate without the corporate limits of the city and 
 within one half mile of sucli limits. The state Consti- 
 tution of Missouri then provided that all property sub- 
 ject to taxation should be taxed in proportion to its
 
 Chap. 1] Restkaints Implied. 3 
 
 value. That Constitution did not confer the power of 
 taxation on the Legislature in direct tenns. It did not 
 in terms then restrict taxation otherwise than by pro- 
 viding that all ])roperty subject to taxation should be 
 taxed in proportion to its value. The Bill of Rights of 
 that Constitution provided that private property 
 should not be taken or applied to public use without 
 just compensation. 
 
 A tax of one-half of one per cent was levied on the 
 lands of Mr. Wells lying outside of the city limits, but 
 within one-half mile of such limits. The lands were ad- 
 vertised for sale regularly according to statutes and 
 ordinances. Mr. AVells applied for and obtained a tem- 
 porally injunction restraining the sale on the ground of 
 the constitutional invalidity of the tax and that the sale 
 would cast a cloud on the title to his land. The con- 
 stitutional invalidity of the statute arose on a demurrer 
 to the petition. The demurrer to the petition ivas s^(^- 
 iained in the court belou-, but the judgment teas re- 
 versed above. 
 
 Judge Leonard in rendering the opinion of the 
 court said: 
 
 ''The question that has been argued before us 
 upon this record, and the only one that we have consid- 
 ered is, whether it is competent for the Legislature to 
 confer upon the city of Weston authority to tax, for lo- 
 cal purposes land, lying beyond the corporate limits. 
 We have considered the matter with all the care that it 
 is our duty to do, when we are required to decide upon 
 the constitutional validity of a legislative act, but clear- 
 ly of opinion that this provision of the charter violates 
 the constitutional rights of the citizen, which we are 
 to protect, we are constrained to pronounce accord- 
 ingly. The judgment upon the demurrer will there- 
 fore be reversed and the cause remanded. 
 
 "It is tnie the Legislature possesses the uncon- 
 trolled power of taxation, with the single limitation
 
 4 L-^w OF Local Taxation. [Chap. 1 
 
 that 'All property subject to taxation shall be taxed iu 
 proportion to its value, ' and this authority to tax, they 
 may undoubtedly delegate to subordinate agencies, 
 such as county tribunals and municipal corporations, 
 to be assessed and applied locally ; but here the attempt 
 is to authorize a municipal corporation— charged with 
 the subordinate government of persons and things 
 within its limits, and having, as incident to this, the 
 power to tax these persons and things for local pur- 
 poses—to impose a tax upon the lands lying beyond its 
 limits; or, in other words, arbitrarily, under the mask 
 of a tax, to take annually from those who are witJiout 
 its jurisdiction a certain portion of their property lying 
 ivithin a half mile of the corporate limits; ivhich ive 
 think can not he done." 
 
 The tax was here one-half of one per cent. There 
 was here no infringement of the rule of constitutional 
 law requiring all property subject to taxation to be 
 taxed in proportion to its value. The charter is uncon- 
 stitutional. Why! Some other provision of the Con- 
 stitution has been infringed. Notwithstanding Wells' 
 land was taxed 'in proportion to its value,' in precise 
 accordance with this constitutional provision still this 
 provision of the charter violates the constitutional 
 rights of the citizen. 
 
 "As the very purpose of instituting government is 
 the protection of the citizen in his person and property, 
 power to violate these rights would seem to be quite be- 
 yond the lawful authority of any government ; and cer- 
 tainly the legislative department of this government 
 cannot arbitrarily take the property of one citizen and 
 give it to another, and, of course can not authorize oth- 
 ers to do so. This is not within the power of any prop- 
 erly constituted government, and our American gov- 
 ernments are expressly prohibited from taking private 
 property, even for public use, without just compensa- 
 tion to the owner. To justify even such an invasion of
 
 Chaj). 1] Restraints Implied. 5 
 
 private property, it must be shown that the use for 
 which it is about to be taken is a public one, and that 
 the compensation to be given has been sufficiently se- 
 cured to the party; and certainly from the very pur- 
 pose of all just governments, and this express provi- 
 sion we may safely imply a constitutional prohibition 
 aiiainst the arbitrary taking of private property for 
 private use without any compensation. This, however, 
 seems to be substantially the authority here given: 
 those who live in the toivn are authorized to exact an- 
 nually from those who live adjacent to it, a certain 
 portion of their property, to he applied, under their di- 
 rection, to their own local purposes. And this we think 
 can not be done under our government, which was in- 
 stituted exclusively for the protection of indi\'idual 
 rights, and where private property is expressly pro- 
 tected from any appropriation of it, even to public use, 
 without full compensation to the owner." And now by 
 express constitutional provision in all the States, with 
 few exceptions, private property can neither be taken 
 nor damaged for public use without ''just compensa- 
 tion" paid in advance. The citizen is not now required 
 or obliged to enter into an unequal contest against a 
 powerful adversary being either the State or some cor- 
 poration having all the powers of the state govern- 
 ment. 
 
 This municipal tax law is judicially determined to 
 be an authority "To take annually from those who are 
 without its jurisdiction a certain portion of their pro|> 
 erty lying within a half mile of the corporate limits, 
 which we think can not be done. ' ' 
 
 The reader will note the difference between taxa- 
 tion by the State on the one hand and taxation by a 
 city, town, village or county or other corporation exer- 
 cising a delegated authority, on the other hand. The 
 state legislature can tax in all cases not prohibited by 
 the Constitution of the State or the Constitution or
 
 6 Law of Local Taxation. [Chap. 1 
 
 laws of the United States; the county, city, town, vil- 
 lage or other municipal corporations can tax only in the 
 cases authorized. When the State taxes, the question 
 is, "Is the authority to tax proluhitedf When the 
 county, city, town, village, or other municipal author- 
 ity taxes, the question is ''Is the authority given?" 
 
 In this case the court recognized the validity of a 
 delegation (to the city of Weston) of this taxing power 
 notwithstanding the general rule of constitutional law 
 that legislative power can not be delegated. "Xo in- 
 stance it is believed, can be found where these corpora- 
 tions have been clothed with power to tax others not 
 within their local jurisdiction for their own local pur- 
 poses and if the Legislature possess the power now 
 claimed, over private property, they ought to exercise 
 it themselves and not delegate it to those whose interest 
 it is to abuse it. ' ' 
 
 This Weston tax law talies the property of one 
 man and gives it to another. While this delegated pow- 
 er in the Weston charter is invalid as a delegated au- 
 thority to take the property of one man and give it to 
 another I do not understand the case to hold that the 
 Legislature of the State may take the property of one 
 man and give it to another. The Weston taxation law 
 took private property of Mr. Wells and vested it in a 
 number of citizens. If that act of taxation had been 
 done directly by the State it would still have been a tak- 
 ing of the citizen's private property for private use. 
 
 The taxing ordinance of Weston and the sale there- 
 under threatened and enjoined will cast a cloud on Mr, 
 Wells' title to his land. The threatened sale would be 
 invalid because the ordinance is invalid ; the ordinance 
 is in form authorized by the town charter of Weston 
 and if the authority to tax is valid the sale and deed will 
 convey his title to the land, i. e., it takes Mr. Wells' 
 land and gives it to the people of Weston. A direct 
 enactment bv the Lesrislature would be no better. The
 
 Chap. 1] Restraints Implied. 7 
 
 authority is to take private property for private use. 
 The Legislature can not do this directly. It can not 
 authorize \\'eston to do so. Hence this charter of Wes- 
 ton is on this point invalid ; it contravenes a provision 
 (implied) of the Constitution that private property 
 shall not be taken from one man and given to another 
 for private use. This decision was rendered in 1856. 
 While under this tax law ^Ir. AVeils' land could have 
 been taken and sold and the title i)assed to others but 
 for the injunction, yet this is not a condemnation pro- 
 ceeding. It w^as not proposed to condemn Mr. Wells' 
 land to public use. It is in no sense an exercise of the 
 right of ''eminent domain." The taxing was a taking to 
 the extent of the tax. If the Legislature may tax one- 
 half of one i3er cent it may tax one hundred per cent in 
 the absence of some constitutional limitation as to 
 rates. This taxation law would have been void if we 
 had never adopted the constitutional provision that 
 "All property subject to taxation shall be taxed in pro- 
 portion to its value." 
 
 The City of St. Charles v. Nolle, 51 Mo. 122, de- 
 cided at October term, 1872, is a case of taking personal 
 property under the guise of taxation. 
 
 The city of St. Charles, Missouri, had power by 
 her charter to tax wagons used to carry property from 
 places without to places within the city, and from 
 places within the city to other places within the city. 
 The ordinance deemed pro|)er to carry out this power 
 was passed. Fritz Nolle, not a resident of the city of 
 St. Charles, but li\ang on a fann five miles from the 
 city, was employed by a lumber finn in the city of St. 
 Charles to haul lumber for the firm from the river land- 
 ing seven miles below St. Charles to the finn's luml>er 
 yard in St. Charles. Mr. Nolle had no license and he 
 was prosecuted for violation of the city ordinance. The 
 court in rendering the opinion (51 Mo. 122, loc. cit. 124) 
 say: 
 
 "Besides, if the Legislature had given the power
 
 8 L.\w OF Local Taxation. [1 Chap. 
 
 in so many words, in my judgment, such legislation 
 "would have been void as going beyond the limitation of 
 legislative power. Although there may not be any ex- 
 press limitation on legislative power in our state Con- 
 stitution, in many instances the very nature of our 
 state governments and the pur|30ses for which they 
 were created, must form a barrier to legislation which 
 deprives one portion of the community of its property 
 for the benefit of others. 
 
 ''The proper construction of the Constitution in 
 regard to taxing [evidently a misprint for ''taking"] 
 private property for public use, is that it can be taken 
 only for public use and not for private use at all, and 
 when taken for the public use there must be a just com- 
 pensation allowed and paid. To tax occupations out- 
 side of the city, for the benefit of those living in the 
 city is in effect taking the property of the citizens for 
 private use : that is, for the use of a particular com- 
 munity, of ivhich the outside citizens form no part. 
 Whether it he called a tax or the appropriation of prop- 
 erty, the result is precisely the same.'' 
 
 Here again the offending power is the tax power. 
 "All property subject to taxation shall be taxed in pro- 
 portion to its value, " is the only limitation in express 
 tenns on the taxing power, eo nomine. But this license 
 tax ordinance and the charter authorizing it, take pri- 
 vate property for private use against a prohibition in 
 the state Constitution, implied from the very nature of 
 the Constitution, and even if it had taken it for public 
 use it would have been invalid as taking private prop- 
 erty for public use without just compensation. The 
 property here taken was the money value of the license. 
 
 In the Toivn of Cameron v. Stephenson, 69 Mo. 
 371, Wells V. Weston and St. Charles v. Nolle, were re- 
 ferred to and approved. Stephenson held a deed to lot 
 78 in the town of Cameron. He paid city taxes for five 
 years. He had voted as a citizen for $50,000 railroad
 
 Chap. 1] Restraints Implied. 9 
 
 bonds and now proposed to repudiate the tax. He 
 claimed (and it was a fact) that his hind was not in 
 the town. The tax was invalid, as being without au- 
 thority. The statute and ordinance violated this im- 
 plied proliibition in tlie Constitution against taking pri- 
 vate property for piivate use. Here again the offend- 
 ing power is the tax power. 
 
 In all these cases property was taken, or about to 
 be taken. Wells' land was about to be taken; Fritz 
 Nolle 's money was about to be taken; Stephenson's 
 town lots were about to be taken. In all these cases 
 the law was literally complied with as to taxation ac- 
 cording to value. 
 
 Speaking of limitations of the powers of govern- 
 ment not in a written constitution, the St. Louis Court 
 of Appeals, in May, 1882, in the case of The State of 
 Missouri v. Addingtori, 12 Mo. App. 21-4:, at 221 (top) 
 says through Seymour D. Thompson, Judge, rendering 
 the opinion : 
 
 ' ' On the other hand there is no such thing, in a 
 free countiy, as absolute, unrestrained power in any 
 branch of the government; and while there are fre- 
 quent expressions to the effect that a statute will never 
 be declared void unless the objector can put his finger 
 upon some specific provision of the Constitution which 
 has been transcended, yet we are disposed to concede 
 that there is in tliis country, such a thing as an unwrit- 
 ten constitution; tliat there are implied reservations 
 of private right in every free government of such an ab- 
 solute character that laws infringing them will not be 
 enforced by the judicial courts." Loan Association v. 
 Topela, 20 Wall. 605, is referred to. 
 
 State V. Addington, quoted from above, did not di- 
 rectly involve the tax power. Loan Association v. To- 
 peka, above, is a writ of error to the United States Cir- 
 cuit Court of Kansas from the Supreme Court of the 
 United States. The decision construed the Coustitu-
 
 10 Law of Local Taxation. [Chap. 1 
 
 tiou of the State of Kansas, not that of the United 
 States. Hence this decision does not have the binding 
 force of a decision of the State Supreme Court con- 
 stniing its own Constitution not charged to be repug- 
 nant to any portion of the United States Constitution. 
 But it is a suit on municipal bonds. The validity of 
 the bonds depended on the power to tax persons and 
 property. The bonds were to encourage manufactur- 
 ing in Topeka under a special act of the Kansas Legis- 
 lature. That the suit was brought on these bonds in the 
 circuit court of the United States and not in the state 
 court ivas. a matter to he expected, although it is to be 
 regretted that the Supreme Court of Kansas was not 
 required to pass on her own Constitution. Mr. Justice 
 Clifford alone dissented. 
 
 Mr. Justice Miller rendered the opinion of the 
 court. He states that there were two reasons urged 
 against the constitutional validity of the act of the 
 Kansas Legislature. The first ground or reason urged 
 against the constitutional validity of the act of the 
 Kansas Legislature is founded on the language of sec- 
 tion 5 of article 12 of the Constitution of the State of 
 Kansas, whereby it is provided that, ''Provision shall 
 be made by general law for the organization of cities, 
 towns, and villages; and their power of taxation, as- 
 sessment, borrowing money, contracting debts, and 
 loaning their credit, shall be so restricted as to prevent 
 the abuse of such power." (20 Wall, at 658.) No re- 
 strictions were made and consequently the act was 
 void. The court remit this question to the courts of 
 Kansas and place their decision on the second ground 
 or proposition. That proposition (p. 659) is "that the 
 act authorizes the towns and other municipalities to 
 which it applies, by issuing bonds or loaning their cred- 
 it, to take the property of the citizen under the guise 
 of taxation to pay these bonds, and use it in aid of the 
 enterprises of others tvhich are not of a public charac-
 
 Chap. 1] Restraints Implied. 11 
 
 ter, thus perverting the right of taxation, ivhich can 
 only be exercised for a public use, to the aid of indi- 
 didual interests^ and personal purposes of profit and 
 gain. The proiwsition thus broadly stated is not new, 
 nor is the question, which it raises difficult of solu- 
 tion." 
 
 After observing that in general if a municipal cor- 
 poration contract a debt, it must be paid by general 
 taxation, and if the corporation can not tax for the pur- 
 pose it can not make the contract, the court further 
 say (p. 662) : 
 
 "We have referred to this history of the contest 
 over aid to railroads by taxation, to show that the 
 strongest advocates for the validity of these laws never 
 placed it on the ground of the unlimited power of the 
 state Legislature to tax the people, but conceded that 
 where the purpose for which the tax was to be issued 
 could no longer be justly claimed to have this public 
 character, but was purely in aid of private or i^ersonal 
 objects the law authorizing it was beyond the legisla- 
 tive power, and was an unauthorized invasion of ])ri- 
 vate right. It must be conceded that there are such 
 rights in every free government beyond the control of 
 the State. A government which recognized no such 
 rights, which held the lives, the liberty and the property 
 of its citizens subject at all times to the absolute dis- 
 position and unlimited control of even the most demo- 
 cratic depository of power, is after all but a despot- 
 ism. It is true it is a desx>otism of the many, of the 
 majority, if you choose to call it so, but it is none the 
 less a despotism. It may well be doubted if a man is 
 to hold all that he is accustomed to call his own, all in 
 which he has placed his happiness, under the unlimited 
 dominion of others, whether it is not wiser that this 
 power should be exercised by one man than many. 
 
 **The theory of our governments, state and nation- 
 al, is opposed to the deposit of unlimited power any-
 
 12 Law of Loc.^l Taxation. [Chap. 1 
 
 where. The executive, the legislative, and the judicial 
 branches of these governments are all of limited and 
 defined powers. 
 
 * * There are limitations on such power which grow 
 out of the essential nature of all free governments. Im- 
 plied reservations of individual rights, without which 
 the social comj)act could not exist, and which are re- 
 spected by all governments entitled to the name. No 
 court, for instance, would hesitate to declare void a 
 statute which enacted that A and B, who were husband 
 and wife to each other, should be so no longer, but that 
 A should thereafter be the husband of C, and B the 
 wife of D. Or, which should enact that the homestead 
 now owned by A should no longer be his but should 
 henceforth be the property of B. . . . 
 
 ''This power can as readily be employed against 
 one class of individuals and in favor of another, so as 
 to ruin the one class and give unlimited wealth and 
 prosperity to the other, if there is no implied limitation 
 of the uses for which the power may be exercised. 
 
 "To lay with one hand the power of the govern- 
 ment on the property of the citizen, and with the other 
 to bestow it upon favored individuals to aid private 
 enterprises and build up private fortunes, is none the 
 less a robbery because it is done under the forms of 
 law and is called taxation. It is a decree under legis- 
 lative forms." 
 
 After defining what is a tax and declaring that the 
 purjjose must be public, and after quoting from Nor- 
 thern Liberties, v. St. John's Church, 13 Penn. 104, et 
 seq. (quoted in our own Supreme Court and elsewhere 
 referred to in this book), and after citing other author- 
 ities, the court continuing says : 
 
 "But in the case before us, in which the towns are 
 authorized to contribute aid by way of taxation to any 
 class of manufacturers, there is no difficulty in holding 
 that this is not such a public purpose as we have been
 
 CliaiD. 1] Restraints Implied. 13 
 
 considering. If it be said that a benefit results to the 
 local i^ublic of a town by establishing manufactories, 
 the same may be said of any other business or pursuit 
 which employs capital or labor. The merchant, the me- 
 chanic, the innkeeper, the banker, the builder, the 
 steamboat owner are equally deserving the aid of the 
 citizens by forced contributions. No line can be drawn 
 in favor of the manufacturer which would not open the 
 coffers of the public treasury to the importunities of 
 two-thirds of the business men of the city or town. ' ' 
 
 The court refer to a number of cases of similar im- 
 port, among them Allen v. Inhahitants of Joy, 60 Me. 
 124, where town bonds wore voted to Messrs. Hutchin- 
 son and Lane to build in the town a steam sawmill, 
 gristmill and box factory machinery ; and the $20,000,- 
 000 in bonds to aid private property-owners in rebuild- 
 ing their houses after the great Boston fire in 1872, and 
 another to aid a school established under a will not un- 
 der the ownership or control of public. [Allen v. In- 
 habitants of Joy, 60 Maine 127; Lowell v. Boston, re- 
 ferred to in 20 Wall. 660, note at bottom of page, as 
 then in MS.] 
 
 Cole V. LaGrange, 113 U. S. 1, is a suit on bonds is- 
 sued by the town of LaGrange in Missouri to encourage 
 the manufacture (in the town) of steel and its pro- 
 duct. Bonds were issued December 14, 1871, decided 
 in Washington January 5, 1885. Mr. Justice Gray in 
 rendering the opinion says: 
 
 "The general grant of legislative power in the 
 constitution of a state, does not enable the Legislature, 
 in the exercise either of the right of eminent domain or 
 of the right of taxation, to take private property, with- 
 out the owner's consent, for any but a public object. 
 Nor can the Legislature authorize counties, cities or 
 towns to contract, for private objects, debts which must 
 be paid by taxes. It can not, therefore, authorize them 
 to issue bonds to assist merchants or manufacturers.
 
 14 Law of Local Taxation. [Chap. 1 
 
 whether natural persons or corporations, in their pri- 
 vate business. These limits of the legislative power 
 are now too firmly established by judicial decision to 
 require extended argument upon the subject." 
 
 In Fletcher v. Peck, 6 Cranch 87. at 135-6, Chief 
 Justice Marshall says : 
 
 ' ' It may well be doubted whether the nature of 
 society and of government does not prescribe some lim- 
 its to the legislative power; and if any be prescribed, 
 where are they to be found, if the property of an indi- 
 \idual, fairly and honestly acquired, may be seized 
 without compensation. To the Legislature all legisla- 
 tive power is granted; but the question whether, the 
 act of transferring the property of an individual to the 
 public, he in the nature of legislative power, is well 
 ivorthy of serious reflection." 
 
 ''Indeed, in a free government almost all other 
 rights would become utterly worthless if the govern- 
 ment possessed an uncontrollable power over the pri- 
 vate fortune of every citizen. One of the fundamental 
 objects of every good government must be the due ad- 
 ministration of justice; and how vain it would be to 
 speak of such an administration, when all property is 
 subject to the will or caprice of the Legislature and 
 the rulers." [Story on Constitution of the United 
 States, sec. 1790.] 
 
 Shall we say that the government does not have an 
 uncontrollable power over the private fortunes of any 
 citizen except by taxation? Shall we say that all the 
 powers of a government are limited by implication ex- 
 cept the implied power to tax ? If the power to tax be 
 unlimited, of what avail are other limitations? ''Taxes 
 may be levied and collected for public purposes only," 
 was not in the Constitution of Missouri till adopted in 
 1875, in sec. 3, art. 10, of that Constitution. Certain 
 municipal bonds are invalid because, to pay the bonds, 
 taxes must be levied and collected and taxes can be lev-
 
 Chap. 1] Restraints Implied. 15 
 
 ied and collectod for a public purjwse only. Here is a 
 limitation on the taxing power. 
 
 In Wells V. Weston, St. Charles v. Nolle, Cameron 
 V. Stephenson, State v. Addington, Loan Association 
 V. Topeka, Cole v. LaGrange, Fletcher v. Peck, Allen v. 
 Inhabitants of Joy, and in case of the bonds to aid 
 those who suffered by the Boston fire, there was no con- 
 demnation proceeding— no exercise of the right of em- 
 inent domain. In all these cases there was no power to 
 tax not ivith standing the evident benefit derived from 
 the tao), in Wells v. Weston, Loan Association v. To- 
 peka, St. Charles v. Nolle, Stephenson v. Cameron and 
 Cole V. LaG range. But if the property in any of the 
 cases had been damaged and the tax had been by the 
 front foot, it would now doubtless be held valid. 
 
 The people of Weston built up a large town. They 
 brought as it were a convenient market almost to the 
 very doors of those living within one-half mile of the 
 city limits, yet ^Ir. Wells and others living within this 
 half-mile limit could not be taxed on that account on. 
 the benefited land. There was no tax except upon the 
 land. Mr. Wells was not required to pay $300 in the 
 form of a tax-bill for doing $2,750 damage to his land. 
 The railroad built into Cameron did not damage Mr. 
 Stephenson's lot $2,750 nor was he required to pay $300 
 in addition as the cost of doing this damage, making the 
 real loss $3,050. The establishment of the factories 
 would have benefited Topeka and La Grange. The 
 damage would not have been ten times the cost of the 
 factories. 
 
 "It may be often difficult to draw the line between 
 a legitimate exercise of the taxing power and the arbi- 
 trary seizure of the property of an individual, or of a 
 class of individuals, for local or general punooses, un- 
 der the mask of this power. In Chaong v. Hoover (9 
 Ben Monroe 330) the question was as to the constitu- 
 tionalitv of a law extending the limits of the town of
 
 16 Law of Local Taxation. [Chap. 1 
 
 Hopkinsville, for the mere puri>ose, as the party al- 
 leged, of bringing his property within the corporation 
 as a subject of taxation; and the judge who delivered 
 the opinion of the court remarked : 
 
 ' ' This is not a case of vacant land or of a well-im- 
 proved farm occui^ied by the owner and his family for 
 agTicultural purposes and which, without being re- 
 quired for either streets or houses or for any other pur- 
 pose of the town but that of increasing its revenue, is 
 brought within its taxing power by an act extending 
 its limits. Such an act, though on its face simply ex- 
 tending the limits of a town, and presumptively a legit- 
 imate exercise of power for that purpose, would in re- 
 ality when ai^plied to the facts, be nothing more or less 
 than authority to the town to tax the land to a certain 
 distance outside of its limits and in effect to take the 
 money of the proprietor for its own use, without com- 
 pensation to him" 
 
 The reader will notice that this is an exercise of 
 the tax power by which money is taken without compen- 
 station. The court continuing say (22 Mo. 390) : 
 
 ' ' That limit can only consist in the discrimination 
 to be made between what may with reasonable plausi- 
 bility be called a tax, and for which it may be assumed 
 that the objects of taxation are regarded by the Legis- 
 lature as forming a just compensation, and that which 
 is palpably not a tax, but is under the form of a tax, or 
 in some other form, the taldng of jorivate property for 
 the use of others or of the public, without compensation 
 and in which it is apparent that the burthen is imposed 
 without any view to the interest of the individual in 
 the objects to be accomplished by it. If it be so, no 
 matter under what form the power is professedly ex- 
 ercised, whether it is in the form of laying or author- 
 izing a tax, or in the regulation of local divisions, or 
 boundaries which result in a subjection to local taxes ; 
 and whether the operation be to appropriate the prop-
 
 Chap. 1] Kkstraints [mi'likd. 17 
 
 erty of one or more individuals without their consent, 
 to tlie use of the general or local ])ublic, or to the use 
 of other private individuals, or a single individual, the 
 case must be regarded as coming within the prohibi- 
 tion contained in this clause, or the C(mstitution is im- 
 potent for the i)rotection of individual rights of i^rop- 
 erty from any aggression, however flagrant, which may 
 be made upon them, provided it be done under color 
 of some recognized power." 
 
 In 1853, in Sharpless v. Mayor of Philaddphia (21 
 Pa. St. 147) the Supreme Court of Pennsylvania say, 
 per Black, Judge, rendering the opinion: 
 
 "It is said that this is a taking of private property 
 for private use. If this be so it is ])aliiably unconstitu- 
 tional. Perhaps there is nothing in the books which 
 shows the tenacity with which this court has adhered to 
 the letter of the Constitution in determining the extent 
 of legislative power more phiinly than the doul)t which 
 was once entertained in Harvey v. Thomas, 10 Watts 
 63, whether the want of an express inhibition did not 
 permit the Assembly to take one man's property and 
 give it to another. The Constitution does prohibit it. 
 It is not }rifhi)i the general grant of leyislatire power. 
 It would be a gross usurpation of judicial authority and 
 would violate the very words of section 2, art. 9 [This 
 must be an erroneous citation, a misprint— Ess.]. The 
 Legislature could not make such a rescript (for it 
 would not be a law) any more than they could order an 
 innocent man to be put to death without trial." 
 
 The legislative acts did not take private property 
 for public use in that case. 
 
 In these tax cases, "Private property is taken." 
 
 o
 
 CHAPTER 2. 
 
 LOCAL TAXATION IN CONNECTION WITH THE EXERCISE OP 
 THE POWER OF EMINENT DOMAIN. 
 
 The mischievous effects resulting from tlie over- 
 throw of constitutional laws in reference to taxation 
 first appear in connection with the exercise of what is 
 usually called the power of eminent domain. Here is 
 the origin of the citizens' troubles — troubles which 
 well nigh render the holding of property impossible be- 
 cause of the excessive burdens imposed upon it. Look 
 at its histoiy in the courts. Meacham v. The Fitclihurg 
 Railroad Company, 4 Cush. 291, is erroneously cited 
 in Neifhy v. Platte Connty, 25 Mo. 258, loc. cit. 276. 
 (Citation of page 392 is erroneous.) In this case Mea- 
 cham was the owner of several tracts of land in the 
 town of AVatertown, Massachusetts. Commissioners 
 were appointed to assess damages to Mr. Meacham for 
 liis land to be taken for a railroad. He owned several 
 other tracts of land in Watertown. The commission- 
 ers made their report and Mr. Meacham being dissat- 
 isfied with it filed in the common pleas court his petition 
 to revise the damages awarded to him. The case was 
 tried before a jury. The railroad company was re- 
 spondent or ''respondents" (in the plural). In the 
 course of the trial the railroad company "proved that 
 the petitioner (Meacham) at the time of the laying of 
 the railroad, and ever since, was the owner of certain 
 other lands and buildings in Watertown, near but not 
 adjoining the lands described in the petition; they then 
 offered evidence for the purpose of showing that since 
 the laying out and construction of the railroad and in 
 consequence thereof, the lands and buildings of the pe- 
 
 (18)
 
 Chap. 2] Power of Eminent Domain. 19 
 
 titioner, other than the lands described in tlie petition, 
 and separate therefrom, as aforesaid, had increased in 
 value to the i)etitioner. But the evidence so offered be- 
 ing objected to, the presiding oflBcer decided that it was 
 inadmissil)Ie; and to this decision the respondents (the 
 railroad company) excejited. After all the evidence wa'^ 
 in, the presiding officer instructed the jury, ''that if 
 they were satisfied the laying out and construction of 
 the respondent's railroad had created or occasioned 
 any benefit or advantage to the lands of the ))otitioner, 
 described in his petition or immediately adjoining or 
 connected therewith, rendering the part not actually oc- 
 cuined by resj)ondent more convenient or useful to the 
 petitioner, or giving it some jieculiar increase of value 
 in the Wcinity, it would be their duty to allow for such 
 benefits or increase of value by way of set-off in favor 
 of the res]X)ndents ; but tliat, on the other hand, if the 
 construction of the respondent's railroad, by increasing 
 the convenience of Watertown generally as a place 
 of residence, and by its anticipated, and probable ef- 
 fect or influence in increasing the population, 
 business and general prosperity of the place had been 
 the occasion of an increase in the saleable value of real 
 estate generally near their depot, including the peti- 
 tioner's said lands, and thereby occasioning a benefit 
 or advantage to him in common with other real estate 
 owners in the vicinity this benefit would be too contin- 
 gent, indirect and remote, to be brought into considera- 
 tion in this question of damages to a particular parcel 
 of land." To these instructions the railroad excepted. 
 
 After remarking on the general character of the 
 statutes allowing general benefits to the owners of the 
 lands, the court say : 
 
 **The Revised Statutes, chapter 24, section 31, in 
 like manner, ]irovide generally for an allowance by way 
 of reduction for such advancement in value of other 
 property. That there must be some limitation of the
 
 20 Law of Local Taxation. [Chap. 2 
 
 proposition that the respondents may show in reduc- 
 tion of damages any collateral tenefit which the peti- 
 tioner has received in his other property, seems quite 
 obvious. The party whose land has been taken for a 
 railroad, has a right, in common with his other fellow 
 citizens, to the benefit arising from the general rise of 
 property in the vicinity, occasioned by the establish- 
 ment of the railroad and the facilities connected there- 
 with." If he has such right then the railroad company 
 cannot compel him either to pay cash for such benefit or 
 what is the same thing. The railroad company can not 
 tax it or deduct it from his compensation in the con- 
 demnation proceeding. This opinion is followed in 
 Neifhy v. Platte County, 25 Mo. 258. The Massachu- 
 setts statute i^ro^dded "Generally for an allowance by 
 way of deduction for such advancement in the value of 
 other property." The Missouri statute provided that 
 the commissioners "Shall take into consideration the 
 advantages as well as the disadvantages of the road to 
 such person." 
 
 This Missouri statute did not nor did the Massachu- 
 setts statute in tenns restrict these advantages or 
 benefits to such as were peculiar, special and excep- 
 tional to the part left not enjoyed in common with 
 other landowners in the vicinity. 
 
 The statute of Missouri and that of Massachusetts 
 would both have been adjudged unconstitutional if 
 either had allowed general advantages to be deducted 
 from his "just compensation." The constitutional 
 provision infringed was, "Private property shall not 
 be taken for public use without just compensation." 
 
 There is no pretense of any infraction of the nile of 
 constitutional law that "All property subject to taxa- 
 tion shall be taxed in proportion to its value." A stat- 
 ute can not be enacted to diminish ' ' the just compensa- 
 tion" required by the Constitution to be paid to the
 
 Chap. 2] Power of Eminent Domain. 21 
 
 owner for land taken for iniblic use if such diminution 
 rests on tlie ground that there is in fact only a general 
 benefit to the owner of the land. There must be not 
 only a benefit to the land from which a part was taken; 
 that benefit nmst be sj^ecial, peculiar, not enjoj-ed by 
 the owner in common with other land in the vicinity. 
 The exaction of this general benefit can not be made 
 from this ''just compensation" allowed, nor from the 
 owner personally, nor as a charge on other land or 
 property of the owner. The power that diminishes 
 this "just compensation" by reason of benefits to other 
 lands is the tax power. In the road law of the District 
 of Columbia (27 U. S. Statutes at Large, p. 535, sec. 2) 
 similar language is used and construed in like manner 
 by the Supreme Court of the United States in Bauman 
 V. Ross, 167 U. S. 554, at 577. 
 
 "It would oiierate with great inequality to hold 
 that where there are various indi\aduals, each owning 
 large manufacturing or trading establishments in the 
 immediate vicinity of a railroad, but without being ad- 
 joining to or connected with the located limits of such 
 railroad, one of whom is the owner of a parcel of land 
 situated in another part of the town over which the rail- 
 road is actually located, that as to the latter, he is by 
 way of reduction of damages for his land thus taken, to 
 be charged for all the incidental benefits which he re- 
 ceives from the location of the railroad in the vicinity 
 of his other land, while the land of others is exemi^t 
 from any contribution. . . . The gTeat and lead- 
 ing principle, to authorize such reduction of damages, 
 is the direct benefit, or increase of value to the remain- 
 ing tract or parcel of land, by reason of the railroad 
 }>assing through the lot or tract as to which damages 
 are assessed." [S. C, 4 Cush. 292.] 
 
 The exaction can not be made by deducting gen- 
 eral benefits from this "just compensation," or by ex-
 
 22 Law of Local Taxation. [Chap. 2 
 
 action of the amount from the owner personally or as 
 a charge or lien on other lands or property. This exac- 
 tion can not be made under the power of eminent do- 
 main, or the police power, or the power of taxation gen- 
 eral or special. 
 
 In McQniddy v. Smith, 67 Mo. App. 205, et seq., 
 Mrs. Smith's lot by the grading was damaged $2,750 
 according to the decision by court and jury. Under the 
 old Constitution of Missouri this damage was not a 
 taking, and hence," damnum absque injuria/' but 
 would the court have put a special tax or sustained a 
 special tax on this damaged lot to pay this presumptive 
 benefit (in fact a damage of $2,750) ? 
 
 The case of James River and Kanawha Company 
 V. Turner, 9 Leigh's Eeports 313, loc. cit. 334, is well 
 reasoned on principle. The reporter's headnote is 
 thus: 
 
 ''And it seems that if the charter had provided that 
 advantages of a general character, which the owner of 
 the land condemned may derive from the improvement 
 in coimnon with the country at large, should be set off 
 against the actual value of the land condemned and ac- 
 tual damages sustained by the owner, such provision 
 would have been unconstitutional." The opinion of 
 the court ''Puts the finger on the provision of the Con- 
 stitution" violated, viz., the Constitution of Virginia, 
 art. 3, sec. 2 which has provided, that the Legislature 
 shall pass no law "Whereby private property shall be 
 taken for public uses, without just compensation." 
 
 Says Judge Brockenbrough in rendering the opin- 
 ion: 
 
 "It could not have been intended to authorize the 
 company to seize on and sequester the property of an 
 individual, and under j^retext of making him a compen- 
 sation for that property, to claim a set-off for a general 
 advantage, which will deprive him of the just compen- 
 sation intended bv the Constitution. It is not credible,
 
 Chap. 2] Power of Eminent Domain. 23 
 
 in my opinion, that the Legislature intended to compen- 
 sate the riparian jji'oprietor for tlie land taken for pub- 
 lic uses, by the vahie of the real or supi)Osed advan- 
 tages derived from the improved navigation, when 
 those same advantages were conferred freely on all 
 others, without being looked upon as a compensation. 
 . . . But even if there were no tolls, or if the tolls 
 were surrendered, and the navigation thrown open to 
 the public, still T should think, that the riparian pro- 
 l)rietor could not be recpiired to pay for the general ad- 
 vantages resulting from the improvement. His land is 
 taken from him without his consent, and for that he is 
 entitled to just compensation. The advantage which 
 he obtains from the improved navigation is not of his 
 own seeking; he obtains it from the public legisla- 
 tion, pursuing the public policy of the country-. 
 Obtaining it fairly in that way, why should he be 
 deprived of it? Why should he pay for an advan- 
 tage which is in some sort forced upon him by the pub- 
 lic, and which it confers on him not with the particular 
 view of benefiting him, but for its own wise purpose." 
 
 Presiding Judge Tucker, after stating the question 
 at issue as being whether general advantages can be 
 deducted or charged as part of the just compensation 
 required by the Constitution, says : 
 
 "It is obvious as has been observed by my Brother 
 Parker, in the able opinion just delivered, that in a 
 vast majority of cases, the value of the land condemned 
 for a public improvement will bear a very small pro- 
 portion to the enhancement in value of the remainder 
 of the tract; I mean an enhancement not arising from 
 advantages peculiar to that tract, but extending to the 
 whole community upon its line, and arising out of the 
 salutary influence of improved facilities of transporta- 
 tion, upon the value of all the real estate within tlie 
 circle of that influence. If. therefore, in a vast major-
 
 24 Law of Loc-ll Taxation. [Chap. 2 
 
 ity of the cases, the value of the condemned land will 
 be exceeded by the enhancement of the residue, and if 
 that enhancement is to constitute the compensation, 
 then it is obvious, that in a vast majority of cases the 
 Constitution will have nothing to operate upon ; 
 and this great and important principle will be 
 confined to the few solitary cases (if indeed any case 
 shall ever occur) in which the proprietor of the con- 
 denmed property does not derive from the public work 
 advantages of a general character, equivalent to the 
 value of what is taken from him. 
 
 "Moreover, it is obvious under this construction 
 of the instrument, that its principle may be extended 
 to a variety of other cases, so as to render this boasted 
 provision of little or no value. Thus, it may be pro- 
 vided, that if an acre of one man's land is essential to 
 the abutment of his neighbor's milldam, it shall be con- 
 demned without compensation for its value, provided a 
 jury shall believe the conveniences of the mill to the 
 owner will more than equal the value of the portion of 
 the land taken from him. And so with respect to pub- 
 lic roads and landings. So, too, if a courthouse is to be 
 erected upon one's land, two acres may be condemned 
 without the allowance of a cent, because the adjoining 
 property is rendered more valuable for the establish- 
 ment of inns, storehouses, and other like advantages. 
 If such be the meaning of this clause of the Constitu- 
 tion, 'it keeps the word of promise to the ear, but breaks 
 it to the hope.' It is a mockery, instead of a wise, just 
 and salutary safeguard of the rights of the people. The 
 jus publicum, though an absolutely essential attribute 
 of sovereignty, should be exercised by every wise and 
 paternal government, with just respect to the rights of 
 individuals. It is enough that it deprives the citizen of 
 his property without his consent; it is enough that it 
 deprives him of that monopoly, which might enable him
 
 Chap. 2] Power of Eminent Domain. 25 
 
 to exact exorbitant terms for his pro]iei-ty; it is enoujjh 
 that it takes from him the privilege of bargaining for 
 himself, and appoints others to bargain for him. It 
 therefore makes compensation for what it takes; it 
 does not put a cliarge n])on him which otliers do not 
 bear; it aims to ])lace the public burdens eciually upon 
 all, by paying the proprietor for that which is taken 
 from him. This is the very object of the Constitution. 
 But this object is utterly frustrated if private property 
 is sunk, and its value extingnished, by setting off a part 
 of those incidental advantages to which the owner is 
 entitled in common with all others within the sphere of 
 the im])rovement. He is not only deprived of the right 
 of making the most of his monopoly, but his possession 
 of property essential to the canal, which, according to 
 the ordinaiy view of things, would give him great ad- 
 vantages, is actually converted to his loss. He is in a 
 far worse condition than his neighbor who has not his 
 advantages ; for the neighbor enjoys all the benefits of 
 the canal, and loses none of his land, while the owner 
 pays, in the ]:>rice of his land, for those advantages 
 which others get for nothing. AMiat benefit does the 
 Constitution, in this view, confer on the owner of land 
 condemned ? AVhat ]irotection does it afford for his 
 rights? His situation is just the same as if the provi- 
 sion of the Constitution had never been made. 
 
 Without it, he would have enjoyed all the advan- 
 tages of the canal, and have lost none of his land; and 
 under its protection, what more does he get? Abso- 
 lutely nothing. For while he enjoys the benefit of the 
 public improvement, in common with his fellow citi- 
 zens, he receives not a cent for the property taken from 
 him. 
 
 *'The whole argument, in ti'uth, a])]iears to me to 
 be founded in a want of due attention to the true mean- 
 ing of the terms of the Constitution. 'Compensation' 
 means 'A recompense given for a thing received.' But
 
 26 Law of Local Taxation. [Chap. 2 
 
 the general advantages received by the public from a 
 public improvement, cannot properly be said to be a 
 'Eecompense given' for the land, for they are equally 
 conferred on those who lose no land. Neither, indeed, 
 are they gi^ts to anybody. They are a mere incident, 
 or accident, arising out of the existence of the improve- 
 ment. They are like the benefit conferred on me by my 
 neighbor, when he builds a merchant mill convenient 
 to my barn, I am benefited, indeed, but that benefit, 
 though conferred by him, gives him no claim against 
 me. In the adventure he has proceeded with a view to 
 his own profit, not with a view to mine. The benefit I 
 enjoy I do not owe to his liberality. It is neither a gift 
 ex mero motu, nor can it be tortured into a price given 
 for what he has taken from me. It can create no debt ; 
 it can pay no debt. It can neither give a right of ac- 
 tion for benefits conferred nor can it give a right of 
 set-off for damages done or property condemned. If 
 it could give such right of set-off it is not perceived 
 why it should not give a right of action for the excess 
 of the benefit over and above the value of the property 
 taken. Nor can I imagine how the company is to com- 
 pensate the defendant for her $350 worth of land by 
 setting off a claim for benefits conferred, which they 
 never could enforce by suit, and for which they can 
 have no pretense of claim legal or equitable. ' ' 
 
 I have thus quoted freely and fully from these 
 cases on the ground that the legal and practical rea- 
 sons advanced appear to be sound and well founded and 
 in the opinion of the writer commend themselves to the 
 sense of justice, honor and fair-dealing of every one. 
 
 A. and B. each owns twenty acres of land. Ten 
 acres of A. 's land is taken for railroad tracks, depot 
 and switches. The land of each is worth $20 per acre 
 before the advent of the railroad. By the advent of 
 the railroad all lands are doubled in value. A.'s twenty
 
 Chap. 2] Power of Eminent Domain. 
 
 27 
 
 acres was worth $400. His remaining ten acres is worth 
 
 $400. He had $40r> worth of hind l)efore the advent of 
 the railroad. He has $400 wortli of hind after it was 
 bnilt. On the contrary, B. had $40(> worth of land be- 
 fore the advent of the road and $800 worth of land after 
 the road was built. A. contributed ten acres of his land 
 to double the price of B. 's land. The depot doubled the 
 price of B.'s land but B. did not pay anything for it. 
 The ten acres might have been devoted to the construc- 
 tion of elegant residences and thereby B. 's land might 
 have been doubled in value but no law can be enacted 
 under our present state constitutions that will compel 
 B. to pay any portion of the value added to his land by 
 his residences constructed, however elegant they may 
 be. The intrinsic value of the land is not changed ; the 
 fertility of the soil is not increased. The atmosphere 
 (physical and moral) is not changed for the better. We 
 are drifting in modern commercialism. Everything and 
 eveiybody is for sale. The dollar-mark is put on every- 
 thing, fewer on the souls of men than on other articles 
 of commerce on the well-known princi])le of American 
 constitutional law, "De minimis non curat lex." 
 
 The Supreme Court of Missouri, in NeKhij v. 
 Platte County, follow Meacham v. Fitzhugh Rij. Co., 
 and in Garrett v. St. Louis refer to James River and 
 Kanawha Co. v. Turner, and approve the opinions of 
 Judges Tucker and Brockenbrough, quoted supra. 
 
 A fuller statement is demanded of the case of Gar- 
 rett V. St. Louis, 25 Mo. 505 (A. D. 1857). Say the 
 court at page 512 : 
 
 "But the Constitution intends to place the public 
 burdens ui)on all and to do this pays the proprietor of 
 land for what is taken by the public. // he is paid in 
 advantages ivhich the commumty at large whose land 
 is not taken enjoy equally with himself, the spirit of the 
 provision might be said to he violated. His loss is cer-
 
 28 Law of Local Taxation. [Chap. 2 
 
 tain and specific and in relation to the land whirh is not 
 taken he only receives the same benefit which others 
 receive who have sustained no loss. These views are 
 very forcibly presented by Judges Tucker and Brocken- 
 brough in the case of James River and Kamawha Com- 
 pany V. Turner, 9 Leigh 313." 
 
 Garrett v. St. Louis, 25 Mo. 506-7, was tried on an 
 agreed statement of facts. Mr. Garrett had im- 
 ])roved his lot. The buildings were valued by 
 the jury at $1,440, and the land taken was worth 
 $768.45, making land and buildings worth $2,208.45. A 
 part of Mr. Garrett's land was left. A^Tiat the land left 
 was worth before the taking or after is not stated. The 
 land taken was worth $768.45. The land not taken was 
 benefited $763, which amount was a lien on the land not 
 taken. The value of the land taken is $5.45 more than 
 the benefits to the land not taken. Say the court, page 
 508: 
 
 ''The only question in this case is the constitu- 
 tionality of the second section of the amended charter 
 of St. Louis, passed February 23, 1853. This section, 
 among other provisions, authorizes the city council to 
 open streets; and when for this purpose it becomes 
 necessary to take private proj^erty, it provides the fol- 
 lowing mode of ascertainng the compensation : After 
 notice to the owner, the mayor is directed to impan- 
 el a jury, whose duty it is made to ascertain the actual 
 value of the land proposed to be taken, without refer- 
 ence to the proposed improvemient. To pay the sum 
 thus ascertained the city is taxed in an amount equal 
 to the value of the improvement to the public gener- 
 ally, and the remainder is assessed against the property 
 fronting on such street, and in the blocks next adjacent, 
 on either side or end thereof, according to the value of 
 the property so assessed, and in the proportion that 
 the owners thereof may he respectively benefited hy
 
 Chap. '2\ I*owER OF PJminknt Domain. 29 
 
 the improvements/ Where under this i)rovision, the 
 entire lot is taken for the street, it is phiin that noth- 
 ing more has been done than an exercise of tlie rij^ht of 
 eminent domain and in a mode in strict conformity to 
 the Constitution. Tlie owner of the lot taken has no 
 cause for dissatisfaction, since he is paid the full actual 
 value of his lot; and the means adopted by the city 
 to raise the funds for this payment are a matter of 
 indifference to him. But where the entire lot is not 
 taken or where the owner has other land on the same 
 street, the question arises whether he can be compen- 
 sated in the mode provided by the charter." 
 
 "That this assessment upon the lotowners front- 
 ing upon the street is an exercise of the taxing power 
 seems too plain to admit of argument." 
 
 Again, at page 514, speaking of the case of The 
 People V. Mayor of Brooklyn, 6 Barb. 213, where the 
 power exercised was held to be that of eminent domain ; 
 the court say : 
 
 "That decision was reviewed and overruled by 
 the court of errors (S. C, 4 Comstock 420) ; which cir- 
 cumstance is calculated to destroy its authority in that 
 State, but would not and ought not to impair its value 
 here, if the reasonings and conclusions of the court 
 were such as to command the assent of our judgment. 
 But that in my judgment is not so: neither the argu- 
 ments nor conclusions are satisfactory. The court de- 
 clare the ]iower exercised by the Legislature to be that 
 of eminent donuiin and this is true where any portion 
 of a lot is taken for the improvement, but is plainly 
 not true when the assessment is ui^on those whose lots 
 are not touched. When such persons are assessed it 
 can only be under the taxing ]iower, since the power 
 of eminent domain operates only u])on individuals and 
 'without reference to the amount or value exacted from 
 anv other individual or class of individuals;' but taxa-
 
 30 Law of Local Taxation, [Chap. 2 
 
 tion 'operates upon a community or upon a class of 
 persons in a conmiunity, and by soiue rule of appor- 
 tionment. ' "When therefore it is clear that this assess- 
 ment upon one class of lot-holders is an exercise of 
 the taxing power, there is no reason why it should not 
 be held to be an exercise of the same power upon the 
 other class whose lots are taken under the power of 
 eminent domain and paid for according to their exact 
 value." 
 
 Suppose Mr. John Smith owned this part of the 
 land not taken (I mean the Garrett land) for the street ; 
 then the assessment will be upon Mr. Smith and the lot. 
 Mr. Garrett is entitled to his "just compensation" for 
 his house and lot taken for public use, fixed by court 
 and juiy at $2,208.45. The sum of $763 is upon Mr. 
 Smith and his lot. Let execution issue against Mr. 
 Smith and his lot and all his other property. The 
 whole of Mr. Smith's property was sold realizing, say 
 $263, and the execution is returned "nulla bona." 
 "\Miat is Mr. Garrett to do for the balance of his "just 
 compensation." He is short $500. This "just compen- 
 sation" must be paid to Mr. Garrett before he can be 
 compelled to give up his house and lot. 
 
 The Constitution intends evidently that Mr. Gar- 
 rett shall have this "just compensation," $2,208.45, 
 paid to him. He can not be compelled to take taxes 
 that may or may not be paid because the owner taxed 
 is insolvent or the property taxed is of less value than 
 the amount of the tax (as in Zoeller v. Kellogg, 4 Mo. 
 App. 163, where the tax was $1,688 on property worth 
 $1,025). It is utterly impossible to sustain this con- 
 demnation : there can not be raised money enough to 
 pay Mr. Garrett. 
 
 When there is no condemnation — when it fails— by 
 reason of failure to i)ay Mr. Garrett this .$2,208.45— 
 whence is derived the power to tax Mr. Smith or his
 
 Chap. 2] Power of Eminent Domain. 31 
 
 lot? The power to tax Mr. Smith and his property is 
 not given in the Constitution in express teniis ; a jjower 
 to do so in that Constitution ought not to l>e implied. 
 The framers of that Constitution never intended any- 
 thing of that kind. 
 
 The St. Louis Charter provided that the jury after 
 first ascertaining the "just compensation" to each tract 
 taken "without reference to the i)roposed improve- 
 ment," should lu'oceed to ascertain the benefit to the 
 public, and next the benefit to each lot and the owner. 
 If the benefits are $500 to the public and $500 to lots and 
 their owmers, the condemnation must fail. Is there any 
 authority for the tax? The question is a question of 
 the power to tax. If St. Louis had the power to tax 
 Mr. Smith and his lot and did so tax that lot and Mr. 
 Smith, then Mr. Smith's lot has gone from him by sale 
 of the lot and the city gets the money and he can not 
 get the money. Besides, Mr. Smith wants his lot and 
 not the money it sold for. Did the city have power to 
 sell it? Did the city have power to tax it? The pur- 
 chaser got Mr. Smith's lot and St. Lonis got the money 
 it sold for, being its full value, both under false pre- 
 tenses. The purchaser would know that the $1,000 tax 
 could not pay ^Nfr. Garrett $2,208.45, and consequently 
 the city could not get the street until Mr. Garrett was 
 paid in full. The city could not nor could the purchaser 
 compel Mr. Garrett to compromise at forty or fifty 
 cents on the dollar. The city got this money and the 
 purchaser got Mr. Smith's lot literally under false pre- 
 tenses. The law never intended anything of that kind. 
 But the power exercised is certainly the |)0wer of tax- 
 ation so far as Mr. Smith is concerned, and the ques- 
 tion is as to the existence of the power and not of the 
 degree to which it may be exercised. 
 
 But it may be said that this tax is void under the 
 tax law and not under the Constitution. Under the
 
 32 Law of Local Taxation. [Chap. 2 
 
 statute there can not be a condemnation or tax. The 
 Constitution authorized the condemnation: the statute 
 did not. The Constitution authorized the tax or author- 
 ized the Legislature to enact that kind of tax law. 
 
 Now let us change the law. Here are the facts 
 (say): 
 
 Mr. Smith's lot before the improvement was worth 
 $100. All the lots within one mile of the improvement 
 are doubled in value and Mr. Smith's lot becomes worth 
 $200, and then Mr. Smith's lot receives a sj^ecial, pecul- 
 iar, exceptive benefit over and above all lots on the 
 street. This exceptive benefit is (say) $100. The gen- 
 eral benefit, the original value of the lot and the special 
 benefit make $300. Add fifty per cent to the original 
 value of the lot, the general benefit and the special ben- 
 efit makes $450 against Mr. Smith and his lot and the 
 public benefit added ($500) makes $950. 
 
 How is Mr. Garrett to get his ' ' just compensation ' ' 
 ($2,208.45) out of this $950! It is short $1,258.45; so 
 the statute will authorize an additional tax on Mr. 
 Smith 's lot, making the total tax on Mr. Smith and his 
 lot $1,708.45, and the city tax for five hundred for the 
 city's benefit makes $2,208.45. The statute in form au- 
 thorizes this tax of $1,708.45 on Mr. Smith and his lot, 
 and if the statute has constitutional authority to sup- 
 port it, there is no way for Mr. Smith to evade that 
 tax. So his lot must be sold. There is no way known to 
 Mr. Garrett or Mr. Smith or to the Constitution or the 
 law by which any one can compel a bidder to go to 
 that sale and bid for that lot and pay $1,708,45 for the 
 lot. Some one bids $200 being 100 per cent of the origi- 
 nal value of the lot and 100 per cent of the benefit, the 
 special peculiar benefit, and the sheriff makes a deed to 
 the purchaser, and Mr. Garrett is short $1,508.45 on his 
 "just compensation" of $2,208.45. So Mr. Garrett 
 keeps his lot till this "jusf compensation" ($2,208.45)
 
 Chap. 2] Power of Eminent Domain. 33 
 
 is paid to liim or into court for him as owner. The 
 purchaser got Smith's lot and tlie city got the money it 
 sold for, both under false jn-etenses and both ought to 
 go to the penitentiary for it. 
 
 It is ti'ue that it may not ha])pen that $200 will be 
 the only bid: It may be true it is not likely to happen; 
 it is true it may not happen that $1,708.45 will not be 
 bid for Mr. Smith's lot. It is true that it is not likely 
 to happen. "It is true it is not likely to ha])i)en, but the 
 fact that it may possibly hai)pen is enough to condemn 
 the law" {City of St. Louis to use v. Allen, 53 Mo. 44, 
 1. c. 55, A. D. 1873). 
 
 There never was a power to take Mr. Garrett's 
 land without first paying Mr. Garrett his "just com- 
 pensation" ($2,208.45). 
 
 It is said in Neicby v. Platte County, 25 Mo. 258, 
 at 264, that hero is exercised both powers of govern- 
 ment in the same breath : first, eminent domain, under 
 which Mr. Garrett's land is taken and just compensa- 
 tion paid ; second, taxation to pay Mr. Garrett. But if 
 Mr. Garrett's compensation is not paid, all parties get 
 out of breath before taxation is reached. Either Mr. 
 Garrett must lose his land and get nothing for it or 
 Mr. Smith must lose his land and get nothing for it. 
 With Mr. Garrett the power exercised is named "emi- 
 nent domain;" with Mr. Smith the power exercised is 
 named "taxation." 
 
 In Louisiana (S- Frankford Plank Road Company 
 V. Pickett, 25 Mo. 535, 1. c. 537, the court below gave 
 this instruction held to be erroneous and occasioning 
 a reversal of the judgment: "The jury shall go upon 
 the land over which the road is ]n'oposed to run, and 
 shall assess the damages sustained by said Pickett, tak- 
 ing into consideration the advantages, if any which said 
 road may l)e to said Pickett, and the jury shall make 
 out in writing their verdict," etc. Saj'^ the court: 
 
 3
 
 34 Law of Local Taxation. [Chap. 2 
 
 *'The instriiction given by the court was erroneous 
 in not restricting the jury to such direct and peculiar 
 benefits or increase of value as were occasioned to that 
 part of Pickett's land not taken for the road and direct- 
 ing them to discard from their consideration any gen- 
 eral benefit or increase of value received by such land 
 in common with other lands in the neighborhood. This 
 has been determined to be the proper construction of 
 this and similar statutes," referring to Neivhy v. Platte 
 County, 25 Mo. 258, and Pacific Railroad v. Chrystal, 
 25 Mo. 544. Judge Richardson dissents; Judge Scott 
 occupies one extreme, Judge Richardson the opposite. 
 
 From the very terms of the Constitution the owner 
 of proj^erty taken for public use must have just com- 
 pensation. This constitutional provision is completely 
 frustrated, annulled, obliterated if the "just compen- 
 sation" may be taxed one hundred per cent, or if the 
 owner may be personally taxed to the extent of one 
 hundred per cent, or if his other property not bene- 
 fited be taxed in an amount sufficient to pay this ''just 
 compensation." 
 
 If the whole lot is taken its price or market value 
 is his "just compensation." This is the exercise of 
 the eminent domain power. If part only is taken, then 
 the remainder may be left in such form and condi- 
 tion as to be of less value. The additional fencing 
 needed, the inconvenient shape of the remainder of 
 the land, in short, "the disadvantages," always were 
 considered in determining the owner's just compensa- 
 tion. The courts are bound from the very terms of 
 the Constitution to consider the disadvantages. Note 
 the peculiar language of the statute. Courts always 
 took into consideration the value of the land. To this 
 they added the disadvantages to the remaining land. 
 Both sums make up the constitutional "just compen- 
 sation." "Just compensation" is wanting if either is 
 left out.
 
 Chap. 2] Power of EiMinent Domain. 35 
 
 Now the lawmaker adds to this that "The com- 
 missioners shall take into consideration the advantages 
 as well as the disadvantages of the road to such per- 
 son," Wlien the commissioners take into considera- 
 tion the advantages they exercise the taxing power. 
 "This law is, indeed, nothing more in effect than the 
 exercise of both powers of government in the same 
 breath — that of taking the land by the right of emi- 
 nent domain, and of requiring, under the taxing poiver, 
 the adjacent landowners to contribute to the cost of it 
 in proportion to the benefit each will derive from the 
 road." {Newhy v. Platte County, 25 Mo. loc. eit. 264.) 
 This case was tried on an agreed statement of facts. 
 One and one-half acres of land were taken, worth fif- 
 teen dollars per acre. This was the exercise of eminent 
 doni/ain. There is no suggestion of error in its 
 exercise, Newby lost his land and got neither 
 money nor benefits. There was no evidence of benefits : 
 no admission of benefits. There must be evidence of 
 benefits in the exercise of this tax-power and if no 
 benefit be found there can be no tax; no withholding of 
 this $22.50 from Mr. Newby. The case was remanded 
 for a new trial and the court below told in plain terms 
 that this benefit must he a peculiar excej^tional l>enefit, 
 one accruing to Newby not enjoyed by the commuuit}" 
 at large, or by other property in the vicinity or neigh- 
 borhood. He is just as much entitled to these general 
 benefits as any other ]ierson in the conununity. This 
 $22.50 must not be taken from Mr. Newby by any sup- 
 posed benefit or advantage. The court below was ad- 
 monished that in the new trial to be had no ])aii: of 
 this $22.50 should be withheld from ^Nfr. Newby by any 
 supposed advantage. The tax power can not thus with- 
 hold or (which is the same thing) take this $22.50 un- 
 less there is on the other side of the account its exact 
 equivalent. Instruct these commissioners when they
 
 36 Law of Local Taxation. [Chap. 2 
 
 retry this case that they can no more take or withhold 
 this $22.50 without just compensation than they can 
 take or withhold his land without just compensation. 
 "\Mien you consider the question of benefits you exer- 
 cise the taxing j^ower and in exercising this taxing 
 power you must not take this $22.50 unless its exact 
 ecjual is in the remaining land in the form of this spec- 
 ial peculiar exceptive benefit. The law for this particu- 
 lar kind of taxation which withholds this $22.50 from 
 Mr. Newby or takes it from him must be in accordance 
 with the provision of the Constitution that "Private 
 property shall not be taken for public use without just 
 compensation." Here the taxing power is the offending 
 power. It is no more so than in Wells v. Weston^ 22 
 Mo. 384, or Loan Association v. TopeTxa, 20 Wall. 655. 
 "We have not as yet (A. D. 1857) many miles of 
 railway, nor has the great body of land in the interior 
 yet attained great value. By restricting the benefits, 
 which the Legislature have declared may be set-off 
 against the value of land taken for a public improve- 
 ment, to such as are peculiar to the landowner and not 
 shared by others whose land is not taken equally with 
 him, growing dissatisfaction with existing legislation 
 will probably be checked. It is evident that the advan- 
 tages or benefits sjjoken of must have some limit. If 
 the owner of land on the line of a railroad, part of 
 which was taken for the road, should happen to own an- 
 other tract half a mile from the road, the benefits which 
 this last tract would receive from the improvement 
 would not be considered ; and yet such increased value 
 of this second tract would be practically and in fact a 
 benefit remotely derived from the road. But the Con- 
 stitution intends to place the public burdens upon all, 
 and, to do this, pays the proprietor of land for what is 
 taken by the public. // he is paid in advantages ivhich 
 the community at large, ivhose land is not taken, enjoy
 
 Chap. 2] Power ok Eminent Domain. 37 
 
 equally nith him.'^elf, the spirit of the provision might 
 he said to be violated. His loss is certain and specific, 
 and in relation to the land ivhiih is not taken, he only 
 receives the same benefit irhich others receive icho 
 have sustained no loss." \ Garrett v. St. Louis, 25 Mo. 
 loc. c'it. 512.] 
 
 On the question as to wliat power of government is 
 exercised, whether the taxing power or eminent do- 
 main, the court (page 514) say: 
 
 '*AVhen such ]iersons [those whose land is taken in 
 part and a part left] are assessed it can only be under 
 the taxing power, since the power of eminent domain 
 0|>erates only on individuals and without reference to 
 the amount or value exacted from any other individ- 
 uals or class of individuals; but taxation 'operates 
 upon a community or upon a class of persons in a com- 
 munity, and by some rule of apportionment.' AMien, 
 therefore, it is clear that this assessment upon one 
 class of lot-holders is an exercise of the taxing power, 
 there is no reason why it should not be held to be an 
 exercise of the same poAver upon the other class, whose 
 lots are taken under the i)ower of eminent domain, and 
 paid for according to their exact value." 
 
 The court might pro]ierly have added the words, 
 ''by the tax levied." If the owner of land is paid in gen- 
 eral advantages, private property has been taken for 
 public use without just compensation. The compensa- 
 tion is ascertained and then in ]ilace of being paid, it is 
 withheld on this ])lea of a set-off of general benefits. 
 The plea of set-off is not a traverse ; it is a confession 
 and avoidance. It admits just compensation and it 
 seeks to avoid it by this ]ilea of set-off of benefits or ad- 
 vantages. Newby (in Neu-hy r. Platte County) got nei- 
 ther cash nor benefits. Hence in remanding the case the 
 court directed the court below to allow only these spec- 
 ial peculiar benefits. The county admits it owes Xcwby
 
 38 Law of Local Taxation. [Chap. 2 
 
 $22.50 for the land taken and the burden of proof is on 
 the county to prove this plea of discharge. There must 
 be pa^Tuent of this $22.50 by (1) all cash, or (2) part 
 cash and the balance in benefits, or (3) all benefits. This 
 taxation power cannot be exercised unless there be 
 (and the court must so find) special peculiar benefits 
 not common to other property in the neighborhood. 
 "The advantages of the road to such person," is the 
 language of the statutes. An advantage to the whole 
 community is an advantage to him. Everybody's land, 
 including Newby's, is doubled in value. That is an ad- 
 vantage to Newby. But why make Mr. Newby pay for 
 doubling the price of all the land in the neighborhood? 
 That is the tax levied. If the law can compel him to 
 pay part, it may compel pajmient of all. 
 
 If he has to pay for public work that doubles the 
 sale value of all his land in common with all the other 
 land in the neighborhood, it is wholly immaterial with 
 Mr. Xewby whether a list shall be made of all his real 
 estate and personal property and the value thereof as- 
 certained, and then take a certain per cent of that 
 value and make him pay that, or ascertain the quantity 
 of his land or the frontage on the road or the number of 
 his horses or cows, and then make him pay according to 
 the value of his land or its frontage or the number of 
 his cows or horses or wagons, or their value. In re- 
 manding this cause to the court below, the Suprem^e 
 Court of Missouri undertake to direct the court below 
 that in the new trial of this cause Mr. Newby must not 
 be robbed either by the front foot of his property or by 
 the acre, or according to the value of his property, or 
 according to the number or value of his cows or horses. 
 It is the fact of robbery (or taking private property for 
 public use without just compensation) and not the 
 method of doing it that the Supreme Court direct the 
 lower court to avoid in the new trial of the case. Newby
 
 Chap. 2] Power of Eminent Domain. 39 
 
 owned tliis land. He owned its exact equivalent, this 
 $22.5^). It was the taxing power that witliliold the 
 money or took the nioiiey hy withholding it from him. 
 The public can no more take this money for publie 
 use without just compensation than it can take the 
 land. The taxing power takes this $22.50 without giv- 
 ing anything in return for it. The case was tried on 
 an agreed statement of facts. There was no evidence 
 of benefits. Hence the reversal of the judgment. The 
 case was tried on an agreed statement of facts. "But 
 it was not admitted that the road was any benefit to 
 the party and the court we think could not infer this 
 as a mattei- of law from the agreed facts." [S. C, 
 Neubi/ r. Platte County, 25 ]\Io. 275.] 
 
 That benefit is a conclusive presumption of law 
 now. The evidence not offered in Neivhy v. Platte 
 County is wholly incompetent now. 
 
 In Garrett v. St. Louis^ St. Louis withheld $763, a 
 benefit tax, as a set-off to the value of the land taken 
 in part and in part left. That amount was estimated 
 as a benefit to the part left. It was deducted from his 
 $2,208.45, his "just compensation." There can be no 
 tax of this kind unless there is a benefit and that ben- 
 efit must not be a general l^enefit in common with other 
 like proi)erty in the neighborhood, but it must be spec- 
 ial, peculiar, exceptive. To have charged Garrett with 
 general benefits would have done violence to that rule 
 of constitutional law that "]>rivate property shall not 
 be taken for public use without just comi)ensation. " If 
 the public had taken all of Garrett's land, the public 
 would have been bound to pay Mr. Garrett $2,208.45, 
 and the l)enefits to other lands would have been taken 
 into consideration. The land on account of which $763 
 was deducted from the whole compensation ($2,208.45) 
 now the property of ]\[r. Smith, will be assessed with 
 $763. Mr. Smith with others contributes to make ui>
 
 40 Law of Local Taxatiott. [Chap. 2 
 
 this amount. If there be no benefit to Mr. Smith's land 
 of the special character required, and Mr. Smith be 
 compelled to pay, the public has received from Mr. 
 Smith $763 without giving him anything for it. The 
 public has robbed Smith to pay Garrett. It would have 
 been as well to have robbed Garrett at the start by not 
 paying him for the land or by taking all his compensa- 
 tion from him or by withholding all or part of it. The 
 public took Smith's $763, or his land or his cattle or 
 any other pro])erty, to pay ^\v. Garrett for his land 
 for this street. Smith got nothing for it and now the 
 public on like principle will be compelled to take 
 Jones' cattle to pay Smith. So the robbery has no end. 
 The power that takes is the taxing power. The power 
 that offends is the taxing power. 
 
 Suppose a third party (Smith) had owned this 
 part of Mr. Garrett's land not taken for the street and 
 on account of which seven hundred and sixty-three dol- 
 lars was deducted on account of sper^ial benefits. Here, 
 then, is a tax on Mr. Smith's land. Is there here any 
 possibility for any one's property to be taken from him 
 without an equivalent being paid for it? If Smith's 
 land is not worth the tax, as before stated herein, and 
 if the land shall sell for what it is worth, then Mr. Gar- 
 rett will not get his just compensation and his proiv 
 erty will have been taken for public use without just 
 compensation, and Mr. Smith's land will have been 
 sold for full value and he get nothing for it. The lanu 
 of both parties has been eifectually taken. If Smith's 
 land be worth $763, and sell for its value, then Mr. 
 Garrett loses his land but gets full "just compensa- 
 tion." Smith loses his land, gets nothing for it, and 
 the tax on Smith's land would be unconstitutional if 
 there was only a general benefit to the land of Smith. 
 Is it a constitutional tax if the general benefit is want- 
 ing? The courts say No. Is it a constitutional tax if 
 there be a general damage? The courts now say Yes.
 
 Chap. 2] Power of Eminent Domain. 41 
 
 It is idle to say Mr. Smith's land has not l>eGn 
 taken. It is idle to say his property has not been taken, 
 in view of the fact that lie has no possession or right 
 to possession of the land and no right of property in 
 it, and he lias no possession of the money the land sold 
 for, and no right to such possession. 
 
 "What benefit is this express constitutional restric- 
 tion to any property-owner if there be an implied power 
 of local taxation to completely nullify it? In one case 
 the public take the land by eminent domain without giv- 
 ing anything for it, and in the other the public take 
 the money by taxation without giving anything for it. 
 Moreover, taxes may be made payable in kind or in 
 property, as well as in money, in the absence of any 
 special restriction in the Constitution to that effect. 
 This is well reasoned in Lane County v. Oregon, 7 Wal- 
 lace 71. 
 
 "Xow to the existence of the States, themselves 
 necessary to the existence of the United States, the 
 power of taxation is indispensable. It is an essential 
 function of government. It was exercised by the Colo- 
 nies; and when the Colonies became States, both be- 
 fore and after the formation of the Confefleration, it 
 was exercised by the new governments. Under the 
 articles of Confederation the government of the United 
 States was limited in the exercise of this power to req- 
 uisitions upon the States, while the whole power of di- 
 rect and indirect taxation of persons and pro|3erty, 
 whether by taxes on polls, or duties on imports, or du- 
 ties on internal ]iroduetion, manufacture, or use, was 
 acknowledged to belong exclusively to the States, with- 
 out any other limitation than of non-interference with 
 certain treaties made by Congress. The Constitution, 
 it is true, greatly changed this condition of things. It 
 gave the power to tax, both directly and indirectly, to 
 the national govemment and subject to the one i^rohibi-
 
 42 Law of Local Taxation. | Chap. 2 
 
 tion of any tax upon exports and to the conditions of 
 uniformity in respect to indirect and of proportion 
 in resi)ect to direct taxes, the power was given with- 
 out any express reservation. On the other hand, no 
 power to tax exports or imports, except for a single 
 purpose and to an insignificant extent, or to lay any 
 duty on tonnage, was permitted to the States. In re- 
 spect, however, to property, business, and persons, 
 within their respective limits, their joower of taxation 
 remained and remains entire. It is indeed a concurrent 
 l^ower, and in case of a tax on the same subject by both 
 governments, the claim of the United States as the Su- 
 preme authority must be preferred ; but with this quali- 
 fication it is absolute. The extent to which it shall be 
 exercised, the subjects upon which it shall be exercised 
 and the mode in which it shall be exercised, are all 
 equally within the discretion of the legislatures to 
 which the States commit the exercise of the power. 
 That discretion is restrained only by the will of the 
 people expressed in the state Constitution or through 
 elections, and by the condition it must not be so used 
 as to burden or embarrass the operation of the national 
 government. There is nothing in the Constitution 
 which contemplates or authorizes any direct abridg- 
 ment of this power by national legislation. To the ex- 
 tent just indicated it is as complete in the States as the 
 like power, within the limits of the Constitution, is com- 
 plete in Congress. If, therefore, the condition of any 
 State in the judgment of its legislature, requires the 
 collection of taxes in hind, that is to say, by the deliv- 
 er^^ to the proper officers of a certain proportion of 
 products, or in gold or silver bullion, or in gold and 
 silver coin, it is not easy to see upon ivhat principle the 
 national legislature can interfere with the exercise, to 
 that end, of this power, original m the States, and never 
 as yet surrendered." {Lane v. Oregon, 7 Wallace 71.]
 
 Chap. 2] Power of Eminent Domain. 43 
 
 This oi)inion is referred to and approved iii' Hagar 
 V. Reclamation District, 111 U. S. 701, at 707, top, where 
 the court say : 
 
 "It was tJie right of each State, to collect its taxes 
 in such material as it might deem expedient, either in 
 kind, that is to say by a certain proportion of prod- 
 ucts," etc., as above quoted. 
 
 The writer is not aware of any ))rovision of the 
 state Constitutions in terms requiring taxes to be pai<l 
 in money further than that all property shall be taxed 
 in proportion to value, a provision not applicable to lo- 
 cal taxes. If the tax may be levied dischargeable in 
 kind, wihy not make it dischargeable in gold coin, or 
 silver coin, in gold Imllion or silver bullion, in gold bars 
 or silver bars or copper bars, or in labor, sand, lime, 
 and cement. People in the rural districts have been 
 bound to pay road tax in labor ever since we acquired 
 Louisiana. 
 
 If a street is to be widened, why not authorize a tax 
 of five feet on each side of the street payable in kind. 
 Why not make it payable in this ''just compensation" 
 of tiie Constitution, and thereby totally nullify the con- 
 stitutional restriction. Taxation is a necessarv' power 
 of government, but that power may be restricted. It 
 is said to be necessary, nevertheless it is restncted. It 
 was not the intention of the framers of the Constitution 
 to restrict the power of taxation only when taxation 
 was unnecessary. The restriction may apply to a nec- 
 essary tax. How^ever necessary the tax may ]>e, the 
 State can not tax imports or exports. The state's Leg- 
 islature should not be al>lo to frame a law wliiHi will 
 in effect destroy constitutional restrictions. 
 
 With the judicial construction now adopted the 
 constitutional restriction should read thus: ''Private 
 property shall not be taken for public use without just 
 compensation, except in the exercise of the ]iower of lo-
 
 44 Law of Local Taxation. [Chap. 2 
 
 eal taxation, or in the exercise of some other govern- 
 mental power, or unless the Legislature deem it neces- 
 sarij." 
 
 Tithes under the English law were nothing more 
 nor less than a tax payable in kind. Tithes (says 
 Blackstone in book 2, chap. 3, subdivision 11) ''Are 
 defined to be the tenth part of the increase yearly aris- 
 ing and renewing from the profits of lands, the stock 
 upon lands, and the |3ersonal industry of the inhabi- 
 tants ; the first species being usually called praedial as 
 of corn, grass, hops and wood; the second mixed, as of 
 wool, milk, pigs, etc., consisting of natural products, 
 but nurtured and preserved in part by the care of 
 man, and of these the tenth must be paid in gross; 
 the third, personal as of manual occupations, 
 trades, fisheries and the like ; and of these only the tenth 
 part of the clear gains and profits is due." 
 
 The reader will notice that the English law took 
 one tenth in kind and that, too, in gross. Personal tithes 
 were an exception, but they yielded nothing if returns 
 had to be made. There would be nothing net if human 
 nature was then as now, and if we may give credence 
 to the sermon at Stamford by Latimer, the refonner. 
 
 "All property subject to taxation shall be taxed in 
 proportion to its value," does not require the Legisla- 
 ture to tax all property. Without this provision it 
 could tax horses and exempt mules. The Legislature 
 could determine the property to be taxed. Tt could 
 leave all other property untaxed. But if the Legisla- 
 ture does select any particular property for taxation 
 then the taxation must he according to value. St. 
 George's Church in St. Louis had this exemption from 
 general taxation {Lochvood v. St. Louis, 20 Mo. 20, at 
 22-3). But it was not exempted from this sewerage 
 tax. Many exemptions from taxation are to be met 
 with, but they seem to cover general taxes. They seem
 
 Chap. 2] Power of Eminent Domain. 45 
 
 not broad enough to cover special local taxes where the 
 money is expended for the benefit of the property taxed. 
 In the absence of any special limitation to the contrary 
 in the state Constitution the Legislature is not bound 
 to tax all property ; it is not bound to subject all prop- 
 erty to taxation {State v. North & Scott, 27 Mo. 464, 
 loe cit. 483). The opinion in chief and the dissenting 
 opinion agi-ee in this (loc. cit. 491) : 
 
 "It is admitted that the State may tax slaves and 
 omit to tax land ; that the State may tax four-year-old 
 cattle and exempt all under that age from taxation; 
 that horses may be taxed and mules be left untaxed." 
 In any case where land is condemned for public use, 
 then, the condemnation money (the just compensation 
 of the Constitution) may be taxed and all other prop- 
 erty be left untaxed. The taxing authority is not gov- 
 erned by the Constitution in local taxes, certainly not 
 as to rates. The rule of constitutional law was that 
 "all property subject to taxation shall be taxed in pro- 
 portion to its value." This does not mean, never did 
 mean, that all property shall be taxed or that all i^rop- 
 erty is subjected to taxation. The meaning is "That 
 all property subjected to taxation shall be taxed in pro- 
 portion to its value." "Subject" means "subjected," 
 and the power that "subjects to taxation" is the legis- 
 lative power. We have no common-law tax in this 
 country. 
 
 Egyptian Levee Company v. Hardin, 27 Mo. 495, 
 is a case where the landowners, in a district of country 
 subject to overflow, are organized into a corporation 
 for the purpose of draining their lands, each landowner 
 voting one vote for every forty acres he may own, and 
 thus the officers are selected. Then for draining the 
 land the board of directors levy a special tax of one 
 dollar per acre, and if not paid it is recoverable by ac- 
 tion of debt or its equivalent action. ' ' The charter so
 
 46 Law of Local Taxation. [Chap. 2 
 
 far as it autliorized a tax per acre is unconstitutional," 
 is the argument of the appellant landowners. 
 
 AVhether this tax law would "take private proper- 
 ty for public use without just compensation," if there 
 was no general benefit or special, peculiar, exceptive 
 benefit, was not discussed or considered or decided. Af- 
 ter remarking that this kind of taxation is special, pe- 
 culiar, local and that the constitutional restriction "All 
 property subject to taxation shall be taxed in propor- 
 tion to value," was intended to apply to general taxa- 
 tion for state or county or city purposes, the court says : 
 "These local assessments (page 496) are not necessar- 
 ily, under our Constitution, apportioned by reference 
 to the value of the property assessed, but may be regu- 
 lated by the value of the benefit which the improvement 
 to which the money is devoted, is expected to confer on 
 the proprietor." 
 
 It is said that this tax "ought to be according to the 
 value of the benefit to be derived. ' ' The defense was 
 "That the act of the Legislature was unconstitutional 
 because the land was taxed hy the acre and not in pro- 
 portion to its value." 
 
 The same learned judge had one year before ren- 
 dered the opinion in Garrett v. St. Louis, wherein the 
 court lay down a limitation on this taxing power not 
 contained in the words of the statute conferring the au- 
 thority. "It is evident that the advantages spoken of 
 must have some limit." In the exercise of this taxing 
 power benefits must have some limit. General bene- 
 fits or public benefits, any benefit not exceptive, local, 
 peculiar, must not be considered in exercising this tax- 
 ing power. If these general benefits are taken into the 
 account, then in the exercise of this taxing power there 
 is a violation of the rule of constitutional law ])rohib- 
 iting, "taking private property for public use without 
 just compensation."
 
 Chap. 2] Power of Eminent Domain. 47 
 
 The word *' taxes" means burdens, charges or iinr 
 positions put or set ui)on persons or property for pub- 
 lic uses, and this is the definition which Lord Coke 
 gives to the word ''talliage" (2 Coke Inst. 532), and 
 Lord Holt, in C^ai-th. 438, gives the same definition in 
 substance of the word "tax." To pay for the opening 
 of a street in^ a ratio to tlie benefit, or advantage de- 
 rived from it, is no burden. It is no "talliage" or 
 *'tax," within the meaning of the exemption. 
 
 *'The charter of the levee company rec|uires the 
 tax to be regulated by the number of acres and not their 
 value. This u])on first impression might carry the a]> 
 pearance of injustice, but it is not very easy to see from 
 all tlie facts disclosed in the record of this case that any 
 practical injustice has been done" (page 499). 
 
 The question below and in the Supreme Court was 
 a ciuestion of power. Did the power exist? Was the 
 statute conferring the power consistent with the Con- 
 stitution? From this record it does not appear that the 
 land was benefited or damaged. That question was 
 not before the court ; it was not raised by court or coun- 
 sel. 
 
 ''Indeed, it is quite apparent that a taxation upon 
 value and not (juantity would in the hypothesis stated 
 produce great inequality. The burden would not be dis- 
 tributed in proportion to the benefit." It seems that 
 there is somewhere an obligation to distribute this bur- 
 den in proportion to the benefit. Nenhy r. Platte Coun- 
 ty and Garrett v. St. Louis are certainly not intended 
 to be overruled. 
 
 Mr. Hardin did not resist this tax in the court be- 
 low or in the Suiireme Court on the constitutional 
 ground that this tax law took his projierty for public 
 use without just compensation. The objection urged 
 was that here property is taxed by the acre (not ac- 
 cording to value as required by the Missouri Constitu-
 
 48 Law of Local. Taxation. [Chap. 2 
 
 tion). The decision was that the provision did not ex- 
 tend to local taxation, but only to general taxes for the 
 State or county, town or city. 
 
 The first street-i^aving tax case to come before the 
 Supreme Court of Missouri was that of CHij of St. Jo- 
 seph V. Anthony, 30 Mo. 537 (A. D. 1860). The tax was 
 ''according to the frontage." 
 
 "The owners of the lots charged therewith shall 
 be bound to pay said costs charged like liabilities con- 
 tracted by themselves and may be sued therefor ac- 
 cordingly." And the tax-bill on each lot is a lien on 
 that lot. The act incorj^torating St. Joseph was held 
 unconstitutional by the lower court, on what ground 
 does not appear from the opinion except by vague in- 
 ference : 
 
 "The princii^al point on which this case is brought 
 here has been several times before this court. In the 
 case of Inhabitants of Palmyra v. Morton, 25 Mo. 594, 
 and Egyptian Levee Co. v. Hardin, 27 Mo. 495, and 
 Garrett v. St. Louis, 25 Mo. 505, the question was dis- 
 cussed and determined. ' ' 
 
 The above fifty words in four lines is the whole 
 opinion on the subject. But the decision was a mere 
 ''hrutnm fiilmen." The case is one example out of 
 thousands where constitutional safeguards are disre- 
 garded. Says a recent writer (James M. Gray, on 
 Limitations of Taxing Power and Public Indebtedness, 
 A. D. 1906, sec. 1842, p. 943) : 
 
 ' ' The fact is that the practice in making these as- 
 sessments grew up as a matter of public convenience 
 without much regard to constitutional restrictions. The 
 courts have twisted constitutional theories to suit the 
 established practice." 
 
 The first Missouri case, cited supra, made the 
 property-owner personally liable for the tax without 
 any lien on the land. The statute gave only an action
 
 Chap. 2] Power of Eminent Domain. 49 
 
 of debt. The second case is decided od the ground tliat 
 the tax is a benefit to the extent of the amount of it 
 and that the benefit can be better estimated by the acre 
 than by the value, and the third is not considered with 
 reference to the provision of the Constitution in con- 
 troversy in this and similar cases. 
 
 **It is evident that the advantages or benefits must 
 have some limit" (Garrett v. St. Louis, 25 Mo. 512). 
 If the advantages or benefits to Garrett must have some 
 limits to avoid infringement of the constitutional pro- 
 vision that "private property shall not be taken for 
 public use without just compensation," then the same 
 rule applies to any other landowner on the street, no 
 part of whose land is taken for the street. 
 
 The rule that sells his land to pay a benefit which 
 is general, not special, peculiar, exceptive, is just as 
 inimical to the rule of constitutional law in question 
 as the rule that withholds part of his "just compensa- 
 tion" or condemnation money for a general benefit to 
 that part of the land not taken, or that sells his ad- 
 joining land to pay it. 
 
 In St. Joseph v. Anthony, if the iTile of law had 
 been to assess the cost of the street-paving on the ad- 
 joining land according to the benefit, then the benefits 
 in the St. Joseph case "must have had some limit" 
 as well as in Garrett v. St. Louis. Then to sell the abut- 
 ting land in the St. Joseph case for general benefits con- 
 ferred by the paving, would be just as inimical to this 
 rule of constitutional law as to retain part of the just 
 compensation due to Mr. Garrett or to sell any abut- 
 ting laud for general benefits. 
 
 If this special tax-law, authorizing the levying of 
 a special tax according to benefit, infringes the rule of 
 constitutional law that "private property shall not be 
 taken for public use without just compensation," in 
 cases where the benefit is general, will it be a less in-
 
 50 Law of Local Taxation. [Chap. 2 
 
 fringemeut of that rule if tlie same amount is taken 
 apportioned according to value or according to front- 
 age, or by the acre or by the square yard? 
 
 In condemnation cases it is general constitutional 
 law tliat the "just compensation" required by the Con- 
 stitution may be diminished by these special, peculiar, 
 exceptive benefits not enjoyed in common with other 
 landowners in the vicinity. This just compensation is 
 made up of the value of the land taken and damages 
 to the remainder of the land not taken. So far no power 
 is exercised except that of eminent domain. When ben- 
 efits or advantages are considered, then the power of 
 taxation is exercised. The power that ascertains these 
 special, peculiar, exceptive benefits and deducts them 
 from the ''just compensation" of the owner of the land 
 taken for public use, is the taxing power. 
 
 If in place of deducting these advantages or ben- 
 efits from; the ''just compensation," they be made a 
 lien or charge on the abutting land or on other land or 
 other property, the power exercised is still the taxing 
 power. The constitutional provision that "All prop- 
 erty subject to taxation shall be taxed in proportion to 
 its value," does not apply to local taxation. For gen- 
 eral and special taxation the taxing power may take 
 one hundred per cent. No constitutional restriction 
 as to rates will apply to special taxes, unless so ex- 
 pressed in very plain terms. It is an exemptioni from 
 taxation to be strictly construed against the lotowiier, 
 but liberally for the city and contractor. In Garrett v. 
 St. Louis, 25 Mo. 505, Garrett's "just compensation" 
 was assessed at $2,208. The public can not acquire title 
 to Mr. Garrett's land without paying him for it. The 
 necessary funds can be obtained only by taxation, gen- 
 eral or special, on all the property of the State, or on 
 all the property of the county, or on all the property 
 of the city. The legislative power is restricted in tax-
 
 Chap. 2] Power of E:\itxi:nt I)o:\iain. 51 
 
 ation of property; it must be according to value. It was 
 not (prior to 1875) restricted as to rates and if some 
 other constitutional provision does not prevent, the leg- 
 islative power may tax one hundred per cent. In everA^ 
 condemnation, the "just compensation" of the owner 
 may be taken by taxing it one hundred per cent. 
 
 If a man own two acres of land, may the ])u]>li<' 
 take one acre at its value ($100) and then tax the $100 
 one hundred ]>er cent to pay it, or sell the other acre to 
 pay it? Sell the acre not taken to Smith for its value 
 (one hundred dollars) and pay the owner his "just 
 compensation." He had two acres of land worth $200; 
 now he has no land and only one hundred dollars. 
 
 What prevents the State from o])ening a road 
 through all the lands of any farming district and as- 
 certaining the "just compensation" therefor, and then 
 tax the adjoining property (damaged though it may 
 be) to pay the amount. We, indeed, hold our real es- 
 tate by a mere "rope of sand." This boasted Consti- 
 tution, indeed, "Holds the word of promise to the ear 
 but breaks it to the hope." 
 
 This "just compensation" must in all cases be sub- 
 ject to be taxed the same as all other property in the 
 State. If the road be made a state burden, then this 
 "just compensation" must or may be taxed along with 
 all other property of the State in pro])ortion to its 
 value. This ''just compensation" may in like manner 
 be subjected to a county tax or city tax for a like 
 purpose. The whole fund necessary to pay this "just 
 compensation" may be raised by a general state tax, 
 or general county tax, or general city tax. If the leg- 
 islative power may thus tax this fund to a small degree, 
 that power may tax it to a large degree in the absence 
 of any constitutional restrictions as to rate or per cent 
 (and there is none in terms in local taxation). 
 
 The express rule of constitutional law that "Pri-
 
 52 Law of Local Taxation. [Chap. 2 
 
 vate property shall not be taken for public use without 
 just compensation," controls this implied rule that the 
 power to tax is without any restraints because none are 
 expressed "eo nomine" and in terms. 
 
 Now to le\y a local tax is unconstitutional if there 
 is a general benefit. It is constitutional to levy the 
 same tax by the front foot even if there be a damage. 
 
 A general benefit defeats the one law as unconsti- 
 tutional ; a general damage saves the other as being 
 perfectly constitutional.
 
 CHAPTER 3. 
 
 PERSONAL LIABILITY FOR A LOCAL TAX. 
 
 "We have seen in the foregoing c'ha])ters tliat this 
 inherent power of taxation is limited by the Constitu- 
 tion. First, we have this express limitation: "All 
 property subject to taxation must be taxed in propor- 
 tion to its value." We have seen that this power of 
 taxation is further limited: A state statute purporting 
 to authorize a city or town to tax persons or property 
 beyond its corporate limits is void as an authority on 
 the ground that it takes private property for 
 public use without just compensation or that it 
 takes private property for private use. We 
 have in the third place considered the taxation 
 features of our condenmation laws that the advan- 
 tages as well as tlie disadvantages shall be considered 
 in estimating "just compensation," and that a statute 
 allowing a deduction from this "just comjiensation" of 
 benefits or advantages, general in their character, not 
 special, peculiar, exceptive, is void, because as a tax- 
 law it takes private property for public use without 
 just compensation. We come now to a fourth limita- 
 tion on this power to tax, and that is in the constitu- 
 tional validity of a law imposing a ])ersonal liability 
 for a local tax. A local tax-law imposing a personal 
 liability on the owner of property is invalid. It takes 
 private jiroperty for pnblic use without just compensa- 
 tion. 
 
 The City of St. Louis to the use of Seihert i\ Al- 
 len, 53 Mo. 44, is a case wherein the personal liability 
 
 (53)
 
 54 Law of Local Taxation. [Chap. 3 
 
 feature of statute laws for local taxation is considered. 
 Suit was brought to enforce the collection of special 
 tax-bills for macadamizing the Gravois road in front of 
 the property of defendant Allen. The tax-bills were 
 made a charge on the land according to frontage on the 
 road, and the statute in form authorized a personal 
 judgment against the owner of the pro|)ertY. The court 
 rendered judgment on two tax-bills jointly against two 
 lots or distinct parcels of land, thus making each par- 
 cel subject to a lien for the amount of both tax-bills in 
 place of each parcel being charged only with its share. 
 So much of the judgment as was a lien was remitted, 
 and thereupon a personal judgment was rendered 
 against Mr. Allen. After an unsuccessful motion for 
 a new trial, he appealed. 
 
 In rendering the opinion, the court observe that 
 in City of St. Louis to use of McGroth v. Clemmons, 36 
 Mo. 467, City of St. Louis to use of Lolirum v. Coons, 
 37 Mo. 44, Fotvler v. City of St. Joseph, 37 Mo. 228, and 
 Inhabitants of Palmyra v. Morton, 25 Mo. 593, personal 
 judgments were rendered against the owners of the 
 lands taxed under statutes in form authorizing such 
 judgments, but the constitutional power to authorize a 
 personal judgment was never discussed or decided. The 
 court quote from Taylor v. Palmer^ 31 Cal. 240, thus : 
 
 ' ' To say that the owner of land bordering upon an 
 improved street can be made personally responsible for 
 the payment of the improvement, is equivalent to say- 
 ing, that his entire estate, real, personal and mixed 
 whether bordering upon the street or remote from it, 
 whether benefited or not, shall be held responsible for 
 the tax." 
 
 After some observations as to the foundation of 
 the right to levy taxes of this kind this court says (p. 
 55) : 
 
 ''It will not be presumed, that it was ever intended
 
 Chap. 3 J Personal Liability for Local Tax. 55 
 
 that a corporation in the exercise of this high preroga- 
 tive should absorb the whole value of a person's prop- 
 erty, and tlien come on him for the deficit. The very 
 idea of such an assumption on the part of either the 
 city or the state legislature, would be sufficient to star- 
 tle one who had even the most crude notion of the ob- 
 jects and purposes of a just or enlightened government. 
 The idea that a city could improve a street and assess 
 the property benefited thereby and sell the entire proi>- 
 erty and then go on the owner, who may reside out of 
 the city, and sell his property there to pay the balance 
 of the assessment, and this all in consideration of the 
 benefit conferred on his property, which was already 
 sold, would seem at least in its results like taking the 
 property of the owner and converting it into public use 
 without any just compensation. I do not believe that 
 by this indirection you can do that which is forbidden 
 by the Constitution if directly done. If a personal 
 judgment can be rendered in such case, all this may 
 happen. It is true, it is not likely to ha])i)en, but the 
 fact, that it may possiblj^ happen, is enough to condemn 
 the law." 
 
 If this personal judgment is to stand, execution 
 may issue and all of Mr. Allen's property in St. Louis 
 may be sold, and yet the execution may be returned 
 unsatisfied in part; an alias execution may be issued 
 to Jackson county, Missouri, and his farm lands in 
 Jackson county (distant more than two hundred miles 
 from St. Louis and this Gravois road, and in no way 
 benefited by this macadamizing on the Gravois road in 
 St. Louis) may })e sold and his title and pro])erty for- 
 ever pass from him. This sale and conveyance {i)h invi- 
 tum) of Mr. Allen's farm lands in Jackson county, Mis- 
 souri, remote from, the street macadamized and not 
 benefited by that macadamizing, constitutes a taking of
 
 56 Law of Local Taxation . [Cliap. 3 
 
 Mr. Allen's farm lands in Jackson county, Missouri, for 
 public use without just compensation. The statute at- 
 tempting to authorize it is invalid. In all execution 
 sales the courts have control over their own process and 
 will so control execution sales as not to sacrifice the 
 property of the execution defendant. The presump- 
 tion is that property will sell at public auction for its 
 full value. In fact one of the ways to ascertain the 
 value of property is to sell it publicly at auction. This 
 St. Louis tax-law is invalid because it takes ''private 
 projDerty for public use without just compensation." 
 The law is unconstitutional in the particular indi- 
 cated. 
 
 It seems the court here did not indulge the conclus- 
 ive presumption that the property was benefited to the 
 full amount of the tax-bills. 
 
 Higgins v. Ansmus, 77 Mo. 351, et seq. (A. D. 
 1883), is another case involving the constitutional val- 
 idity of local taxation laws, where such effect anything 
 except a lien or charge on the particular lot on the 
 street, xlusmus the defendant and appellant was the 
 tax collector of the town of Linneus in Linn county, 
 Missouri. The tax collector was by law authorized to 
 seize and sell personal property to pay any land tax. 
 (This is the statute law generally throughout the 
 United States.) The tax-books were prima facie evi- 
 dence (by statute) in favor of the collector and were 
 prima facie authority to seize and sell (the same as on 
 execution) personal property to pay a land tax. Hig- 
 gins the plaintiff owned a lot in Linneus in Linn county, 
 Missouri. A sidewalk was constructed under ordinance 
 and contract in front of Mr. Higgins' lot, the cost of 
 which was under the statute a lien or charge against 
 the lot. General taxes were levied on this lot. The 
 general tax and the local tax were delinquent and were 
 in the hands of defendant Ausmus as collector for col-
 
 Chap. 3] Personal Liability for Local Tax. 57 
 
 lection. Mr. Higgins paid his general taxes, but he 
 refused to pay tliis sidewalk tax amounting to $8.(>4-, 
 claiming as a defense that he had the right to make the 
 sidewalk himself and he was given no op])ortunity to 
 do so. Ausmus, the collector, having the tax-books in 
 his possession, seized two stoves belonging to Mr. Hig- 
 gins and was proceeding to sell the stoves to pay this 
 sidewalk tax. Mr. Higgins replevied the stoves be- 
 fore a justice of the i>eace, where he had judgment in 
 his favor, as also in the circuit court on appeal by de- 
 fendant Ausmus, the collector. The case, although it 
 involved only $8.64, was appealed to the Supreme 
 Court of the State where the judgment was affirmed. 
 Defendant Ausmus asked an instruction in the trial in 
 the circuit court to the effect that "The tax-book is 
 sufficient to authorize him [the collector] from the tax- 
 book alone to enforce the papnent of its taxes by le\y, 
 seizure and sale of i)ersonal property for due and un- 
 paid taxes," axid that the finding must be for the de- 
 fendant. This was refused, excepted to, and assigned 
 for error in the Supreme Court. It seems from the 
 evidence that this special tax was placed on the tax- 
 books by the collector without authority, and there- 
 fore the tax-book had no authority by law like an exe- 
 cution. The court hold that upon either of the two 
 views the judgment must be affirmed. The statute is 
 held invalid as an authority. The opinion on the con- 
 stitutional question is thus (p. 353) : 
 
 ''There can be no question but that a tax-book, em- 
 anating from proper authority, and placed in the hands 
 of one authorized to collect the taxes therein contained 
 when it camt to his hands, would be a valid ]irocess and 
 authorize the collector to le\^^ upon proi>erty of a de- 
 linquent taxpayer to enforce payment, but when it ap- 
 pears, as we think it does in this case, that the special 
 tax for the non-pa^^nent of which the stoves in ques-
 
 58 Law of Local, Taxation. [Chap. 3 
 
 tion were levied upon, was for street or sidewalk im- 
 provements in front or opposite defendant's real es- 
 tate, it did not confer upon the collector any authority 
 to levy upon defendant's personal property, it having 
 been held by this court in the case of City of St. Louis 
 V. Allen, 53 Mo. 44, that such a special tax or assess- 
 ment can only be enforced against the said real estate, 
 and that a personal judgment for such a tax against 
 the owner is null and void, and statutes authorizing 
 such judgments are unconstitutional and void. It was 
 also so held in the case of City of Louisiana v. Miller, 
 66 Mo. 467." 
 
 The rule of constitutional law that ''AU property 
 subject to taxation shall be taxed in proportion to its 
 value," is not infringed. 
 
 ''Private property shall not be taken for public use 
 without just compensation," is the rule of constitu- 
 tional law violated. 
 
 The City of Pleasant Hill v. Dasher^ 120 Mo. 675, 
 affords another illustration that a tax law may in- 
 fringe the rule of constitutional law that "Private 
 property shall not be taken for public use without just 
 compensation. ' ' 
 
 The City of Pleasant Hill had a special charter 
 from the Legislature of the State (Laws 1858-9, p. 155). 
 The eleventh section of that act was as follows : 
 
 "The council shall have power to cause the own- 
 ers or occupiers of real estate to j)ave and repair side- 
 walks adjacent to the property which they may own or 
 occupy; and if any such owner or occupier shall fail 
 to pave or repair the same, as required by ordinance, 
 the council may cause the same to be done, and may re- 
 cover the full expense thereof by an action of debt in 
 the name of the corporation." 
 
 In Missouri, after August 2, 1875, the time the new 
 Constitution went into effect special charters can not be
 
 Cliap. 3] Personal. Liability for Local Tax. 59 
 
 granted by the Legislature to cities, towns or villages 
 (Const, art. 9, sec. 7). These municipal corporations 
 must hft classified into classes not exceeding four, and 
 the power of each class shall be defined by general 
 laws. And municipal corporations then under spec- 
 ial laws could not )x? compelled to give up their char- 
 ters. Laws were to be passed to authorize them to elect 
 to come under the general laws. 
 
 The City of St. Louis to use v. Allen was decided 
 in the year 1873 and this decision rendered invalid 
 nearly all the special charters in the State granted 
 from the time of the admission of the State into the 
 Union. Cities, towns and villages were organized also 
 under general laws. This action of debt was a promi- 
 nent feature of all these laws. In fact, an action of 
 debt seems to have been (as at common law) the ai^pro- 
 priate action to recover any penalty or any amount due 
 by statute. In March, 1887, fourteen years after the 
 decision in City of St. Louis to use v. Allen, the Legis- 
 lature of Missouri passed an act (Laws 1887, p. 95) 
 that all cities of ten thousand inhabitants or less, act- 
 ing under a special charter, may cause owners or oc- 
 cupiers to pave sidewalks, making the cost a lien on the 
 lot and providing for its enforcement in court. The 
 court say (p. 680): "The act of 1887 was no doubt 
 passed in view of what was said by this court in the 
 case of the City of St. Louis to use v. Allen, supra, and 
 repeated in subsequent cases." 
 
 In approaching the subject under consideration the 
 court says : 
 
 "The question then arises, whether the city has 
 and possesses both remedies, or whether the enforce- 
 ment of the lien is the only remedy? In short, does the 
 act of 1887 repeal section 2 of the Charter.'" 
 
 "In disposing of this question, it is well to bear in 
 mind the former adjudications of this court. Neenan
 
 60 Law of Local Taxation. [Chap. 3 
 
 V. Smith, 50 Mo. 528, was an action to collect tax-bills 
 for macadamizing a street. It was held that plaintiff 
 was not entitled to a general judgment against the own- 
 er of the land, and doubt was expressed whether the 
 Legislature had the power to authorize a general judg- 
 ment in such cases. The authorities on this question 
 were reviewed in the subsequent case of St. Louis to use 
 V. Allen, 53 Mo. 44, and it was held in clear and distinct 
 terms that the Legislature had no power to authorize a 
 personal judgment against the proi)erty-owner in suits 
 to recover these local assessments. The ruling made in 
 that case has been approved in a number of subsequent 
 cases." The rule of constitutional law infringed is that 
 "Private property shall not be taken for public use 
 without just compensation." 
 
 This tax-law authorized a personal judgment and 
 was therefore unconstitutional and void. The general 
 judgment was a lien on all lands and all these lands 
 could be sold and the title divested from the owner by 
 sheriff's deed. If it be thus unconstitutional to divest 
 his title to property under a general judgment declared 
 by statute to be a lien to be enforced by execution and 
 sale, can the Constitution be evaded by the law author- 
 izing the tax-bill to be a lien just like the general judg- 
 ment lien and effect a divestiture of title in the same 
 way? AVith the general judgment, the lien is uncon- 
 stitutional. How can the lien be made better without 
 the judgment, execution sale and sheriff's deed? Can 
 the lien be made any better without the judgment than 
 with it? We have been dealing with tax-bills made 
 liens on abutting property only. If the Constitution 
 prohibits a general judgment, a general judgment lien, 
 an execution, levy, sale and sheriff's deed, will the Con- 
 stitution permit a statute accomplishing the same re- 
 sults by authorizing a tax-bill and making it a lien on 
 all property on which the general judgment is a lien?
 
 Chap. 3] Personal Liability for Local Tax. 61 
 
 The intent ion of the Constitution as deterniined in 
 these decisions is, that no i)roi)erty, except abutting 
 property, shall be subjected to this h)cal tax. Can the 
 Constitution be evaded by enacting a law making the 
 tax-bill a lien on all the real estate and personal prop- 
 erty of the owner in the town or city .' If the tax-bill 
 lien may be extended a foot beyond abutting property, 
 it may be extended a mile. Mr. Higgins' stoves could 
 not be taken {lUggins v. xiusmus, 11 Mo. 351), for that 
 eight-dolhir sidewalk tax-bill. Could they take a lot 
 two blocks away, not abutting on the street? Could 
 they take his wagon and team or his farm? Does the 
 Constitution prohibit a name or a thing? Ts it compe- 
 tent for the Legislature to enact a law (as was at- 
 tempted in the proposed charter for Kansas City, de- 
 feated by popular vote in March, 1905), authorizing an 
 extension of the lien beyond abutting ])roperty, whether 
 benefited or not? If the city council may, by its char- 
 ter as its law, tax abutting property for grading a 
 street in front of it when the grading is a damage to 
 that abutting property, no reason can be perceived why 
 distant property not damaged should not be taxed. If 
 the law may make the tax a lien on land a foot distant 
 from abutting property, it may make it a lien on land 
 distant one mile, or anywhere in the city.
 
 CHAPTER 4. 
 
 EFFECT OF THE DECISION IN THE CITY OF ST. LOUIS TO USE 
 OF SEIBERT V. ALLEN, 53 Mo, 44. 
 
 A little attention to the history of the law and the 
 development of the rights of the individual as against 
 the public, the king, the State, the United States, will 
 show the importance of this decision. 
 
 Under the English common law there were 
 scarcely any exemptions from execution sales on judg- 
 ments against the owner. The person was sacred; so 
 nothing could be taken from the person. But the exe- 
 cution was against the man, his goods and chattels, and 
 in Missouri his real estate. A homestead does not exist 
 except by force of statute law so far as being safe 
 against the execution creditor. In the early history 
 of the law the execution creditor took all the personal 
 property, all the real estate, all property of every kind, 
 and then sent the execution defendant to jail, there to 
 remain till the debt was paid. 
 
 Under such a state of the law, it was or would have 
 been almost an idle ceremony to make these local 
 taxes a lien on the land. Hence, the action of debt 
 was given in almost all cases. Thereby all that the in- 
 dividual had and all he might acquire afterwards was 
 subject to this charge or tax made by the king, the 
 state, the United States. ''The owtners of the lots 
 charged therewith [the cost of the improvement] shall 
 be bound to pay said costs charged like Uahilities con- 
 tracted by themselves, and may he sued therefor ac- 
 cordingly," says the St. Joseph charter as late as A. D. 
 1860, and quoted in City of St. Joseph v. Antlwny, 30 
 Mo. 537, at 538, bottom. 
 
 (62)
 
 Chap. 4] Effect of St. Louis to Use v. Allen. 63 
 
 The power or authority adjudged valid in InJiahi- 
 tants of Palmyra v. Morton, 25 Mo. 5i).'>, was "To have 
 the footways and sidewalks of tlie streets paved at the 
 expense of the owners or occupiers of the adjacent 
 lots; and if such owner or occujiior fail to i)ave the 
 same as directed by ordinance, said trustees shall pave 
 the sanne and recover the full expense thereof from such 
 owner or occupier, before any court of competent juris- 
 diction by action of debt." This statute gives a gen- 
 eral judgment without any lien on the abutting land. 
 This general judgment is void. The statute authorizing 
 it is void. It authorizes the taking of ])rivate property 
 for public use without just compensation. 
 
 "The constitutional power to authorize the ren- 
 dition of a personal judgment in such case was not con- 
 sidered or argued " (53 Mo. 44, at 51). luhahifanfs of 
 Palmyra v. Morton, 25 Mo. 593, was decided in Octo- 
 ber, 1857 ; City of St. Louis to use v. Allen, 53 Mo. 44, 
 in March, 1873. The two decisions are thus less than 
 sixteen years apart in ]ioint of time. On princi]ile they 
 are the antipodes of each other on American constitu- 
 tional law. 
 
 The argnment advanced in Tnhahitants of Palmyra 
 r. Morton, 25 Mo. 593, as stated in the opinion of the 
 court is, that ''It is obnoxious to the constitutional pro- 
 vision which declares that private property shall not 
 be taken for public use without just compensation. It 
 may be observed, in the first place, that there is no at- 
 tempt here to exercise the right of eminent domain ; for 
 it was not proposed to condemn the defendant's prop- 
 erty to ]mblic use, and it is unnecessary to discuss the 
 character, extent or limitation of that power." 
 
 The judgment is different in St. Louis to use r. 
 Allen, 53 Mo. 44. By that jud^gment private property 
 is taken for public use without just compensation. In 
 InMbitants of Palmyra i\ Morton the court decline to 
 discuss the question.
 
 64: Law of Loau. Taxation. [Chap. 4 
 
 In "An Act concerning towns in this Territory," 
 in Laws of Louisiana 1804-8, adopted (under Act of 
 Congress) by Meriwether Lewis, governor, and John 
 B. C. Lucas and Otho Shrader, judges of Louisiana 
 Territory, on page 259, Laws Louisiana Territory, part 
 one, see. 5, we find it enacted under date of June 8, 1808, 
 that the trustees of towns have the power to "Cause 
 the streets to be cleared and repaired by the inhabi- 
 tants thereof, and if any of them shall refuse to clear or 
 repair the part assigned to them, the trustees may hire 
 the clearing and repairing of the same and le\y and 
 collect the price thereof on the persons so failing and 
 refusing. ' ' 
 
 This was five years after we acquired Louisiana. 
 It was four years before Missouri Territory wag 
 formed — eight years before the Territory of Missouri 
 adopted the English common law— thirteen years be- 
 fore the State of Missouri was admitted into the Union 
 of states. The territorial Legislature of Missouri Ter- 
 ritory adopted the same law in the same language at 
 its first session in 1813-14 (Laws of Missouri Territory, 
 1813, p. 63-4, sec. — ). This was also the language of 
 the Revised Statutes of the State of Missouri of A. D. 
 1825, vol. 2, p. 766, sec. 5; Revised Statutes 1835, p. 602, 
 sec. 7; Revised Statutes 1845, p. 1050, sec. 9; Revised 
 Statutes 1855, vol. 2, p. 1527, sec. 12 ; General Statutes 
 1865, p. 242, sec. 12; Revised Statutes 1879, vol. 2, p. 
 995, sec. 5015 ; Revised Statutes 1889, vol. 1, p. 464, se<3. 
 1677; but by Revised Statutes 1899, vol. 2, pp. 1411-12, 
 sec. 6016, it becomes a lien only. 
 
 The road law of Missouri has always had similar 
 defects. Missouri Territory, by its first Legislature, 
 enacted road laws. If the owner consented, the road 
 was opened; but if he refused to assent then commis- 
 sioners were appointed to assess his damages, but the 
 road law contained this remarkable (to this writer at 
 least) provision:
 
 Chap. 4-] Effect of St. Louis to Use v. Allen. 65 
 
 "And provided, also, that nothing sliall be allowed 
 to any person or persons where sucii road passes 
 through his or their unimproved lands." (Laws Mis- 
 souri Territory' 1813, p. 73-4.) 
 
 This provision is retained in Revised Statutes 
 1825, vol. 2, p. 689, sec. 3, at end. If they may be au- 
 thonzed to take twenty feet they may take a mile. Even 
 as late as 1888 the Congress of the United States en- 
 acted that in condemnation proceedings of dams of the 
 Monongehala Navigation Company on that river, the 
 commissioners assessing damages should not allow 
 anything for the franchise. (U. S. Statutes at Large, 
 vol. 25, 400-411, c. 860), but this was held void. [14^ 
 U. S. 312, Monongehala Navigation Co. v. U. S.] 
 
 In Inhah'itauts of Palmi/ra v. Morton, 25 Mo. 593, 
 there was involved the validity of a sidewalk repair tax- 
 under a statute not giving a lien on the jand in front 
 of which the repairs were made, but merely an action 
 of debt against either the owner or occupant. 
 
 ''There is no attempt here to exercise the right of 
 eminent domain, for it was not proposed to condemn 
 defendant's land to iniblic use, and it is unnecessary to 
 discuss the character, extent or limitation of that 
 power. ' ' 
 
 In City of St. Louis to vse v. Allen, 53 ^lo. 44. it 
 was not proposed to condemn Mr. Allen's land to pub- 
 lic use. 
 
 In Higgins v. Ausmns, 77 Mo. 351, it was not pro- 
 posed to condemn Mr. Higgins' stoves to public use. 
 
 In Cifg of Pleasant Tlill v. Dasher, 120 Mo. 675, it 
 was not proposed to condemn Mr. Dasher's lot to pul> 
 lie use. 
 
 In Wells V. Weston, 22 Mo. 384, it was not pro- 
 posed to condemn Mr. Wells' land to public use. 
 
 In Tow-n of Cameron r. Stephenson, 69 ^lo. 372. it
 
 66 Law of Local Taxation. [Chap. 4 
 
 was not proposed to condemn IVIr. Stephenson's lots 
 (outside of the town) to public use. 
 
 In City of St. Louis v. Hill, 116 Mo. 527, it was not 
 proposed to condemn .the forty feet front of each lot 
 on this boulevard to public use. 
 
 This constitutional restriction is confined to too 
 narrow limits when that great bulwark of the rights of 
 man is made to read thus : ' ' Private property shall 
 not be taken for public use in the exercise of the right 
 of eminent domain without just compensation; it may 
 be taken for public use in the exercise of any govern- 
 mental power other than that of eminent domain with- 
 out paying or being bound to pay anything for it." If 
 this be legally true, then the constitutional right to 
 hold private property has been reduced to an exceed- 
 ingly attenuated shadow. The Constitution merely 
 prohibits a name. 
 
 Constitutional provisions formerly read thus: 
 * * Private property shall not be taken or applied to pub- 
 lic use without just compensation." Its language has 
 been changed generally to "Private property shall not 
 be taken or damaged for public use without just com- 
 pensation." The damaging prohibited is not applied 
 alone to cases involving the exercise of the right of 
 eminent domain. Private property shall not be taken 
 or damaged for public use in the exercise of the right 
 of eminent domain, or in the exercise of any other gov- 
 ernmental power. It can not be done directly or indi- 
 rectly through any disguise or subterfuge, or under any 
 mask or pretense. 
 
 The decision that a statute law, making either own- 
 er or occujyant personally liable for a local tax, is in 
 violation of the Constitution of the State in permitting 
 or authorizing "Taking private property for public 
 use without just compensation," was scarcely less than 
 a revolution in the constitutional law and history of 
 the State. It was effected in the short space of less than
 
 Chap. 4] Effect of St. Lou is to Use v. Allen. G7 
 
 sixteen years. The mere occu])ant of town ])ro])erty 
 was by these laws made jjeisonally liable for the cost 
 of the improvement, binding all he had and all his fu- 
 ture aciinisitions. Indeed, this was "sufficient to star- 
 tle one who had even the most crude notion of the ob- 
 jects and i)urposes of a just or enlightened govern- 
 ment" (53 Mo. loc. cit. 55). Indeed, this is "taking the 
 ]u-operty of the owner and converting it to ])ublic use 
 without any just compensation" (53 Mo. 55). This 
 tax-law is in conflict with the state Constitution pro- 
 viding that "private property shall not be taken for 
 public use without just compensation." This statute 
 law— this tax law — does not infringe that provision of 
 the state Constitution requiring that "All property 
 subject to taxation shall be taxed in jiroportion to its 
 value." This revolution in constitutional law is thus 
 commented on in Sadler v. Roth, 59 Mo. 400, at 402 
 (March, 1875) : 
 
 "The Acts of 1867, 1870, and 1871, in relation to 
 special tax-bills in the city of St. Louis, appear to have 
 been devised with a view of creating a personal liabil- 
 ity on the part of the owiier of the property charged, 
 and since the decisions of this court in the case of Nee- 
 Uiin. V. Smith (50 Mo. 525), and the CUij of St. Louis v. 
 Allen (53 Mo. 44), holding that no personal judgment 
 can be rendered in such case, the unity and consistency 
 of the acts having in a measure been destroyed, it is a 
 task not altogether without difficulty to determine what 
 force and effect shall be given to the portions remain- 
 ing undisturbed by judicial decision." 
 
 Some fuller statement ought to be made as to the 
 case of Zoeller r. Kellogg, 4 :\ro. Ap]\ 163 (A. D. 1877), 
 referred to in Norwood v. Baker, 172 U. S. 269, and 
 elsewhere herein. 
 
 In July, 1868, defendant Kellogg owmed sixty-nine 
 feet front on two streets, occupying two blocks in St. 
 Louis, Missouri. A slri]) fifty feet wide was con-
 
 68 Law of Local Taxation. [Cliap. 4 
 
 denined for fiercer street, leaving of the sixty-nine 
 feet, seven and one-half feet on one side and eleven and 
 one-half feet on the other side. Then the new street was 
 paved, curbed and guttered, and tax-bills issued against 
 these small strii:)s of ground to the amount of $1,488.16 
 face value. These tax-bills were issued in 1873. The 
 trial, or rather the decision, was made June 12, 1877, 
 in the St. Louis Court of Appeals. The court at the 
 instance of the plaintiff, the holder of these tax-bills, 
 gave this instruction (p. 164) : 
 
 "If the court, sitting as a juiy, believe from the 
 evidence that the work and materials charged for in the 
 bills sued on were furnished, and that the work de- 
 scribed in said bills was executed according to the con- 
 tract, then the plaintiff is entitled to recover, without 
 regard to the value of the land upon which the lien is 
 sought in this suit. ' ' 
 
 Defendant excepted to the giving of this instruc- 
 tion and after an unsuccessful motion for a new trial 
 sued out a wi'it of error and the trial was on this rec- 
 ord. Plaintiff obtained a judgment below for $1,642.55 
 against this lot, ''worth not more than $1,025." The 
 judgment was reversed and the case remanded for a 
 new trial. A rehearing was granted and on second ar- 
 gument the judgment was again reversed and the case 
 remanded. Judge Lewis rendered the opinion both on 
 the original hearing and on the rehearing. 
 
 "A power which compels a man to pay for work 
 and materials which he has neither asked for nor con- 
 sented to receive, or else to surrender part of his prop- 
 erty to another, seems so repugnant to all ideas of that 
 personal protection which is the chief end of civil gov- 
 ernment that we must be able to refer it to some dis- 
 tinct basis of constitutional authority. It can not stand 
 upon the power of taxation for it lacks, in all cases, the 
 essential characteristics of equality and uniformity. To
 
 Chaj). 4] Effect of St. Loris to Use v. Ali.en. 69 
 
 tax one man alone for a specific item in the i)ublic out- 
 lay wonld be in jirinciple, no better than to tax him for 
 all the ex])enses of the mnnici])al government. The only 
 constitutional basis upon which the assumed power can 
 rest at all is the right of taking private property for 
 the ])ublic use, ui)on just compensation being made 
 therefor. 
 
 "Our Supreme Court has repeatedly said that lo- 
 cal assessments for improvements 'Is not considered as 
 a burden, but as an equivalent or compensation for the 
 enhanced value which the property derives from the 
 improvement' {Lochvood v. City of St. Louis, 24 Mo. 
 20; Shelian v. The Good Samaritan Hospital, 50 Mo. 
 155; Citi/ of St. Louis v. Allen, 53 Mo. 54). The con- 
 verse of this proposition must be equally true ; so that 
 the enhanced value which the ]U"operty derives from the 
 improvement is, practically, the compensation which 
 the owner gets for the assessment against it. This as- 
 sessment to be enforced as a lien which may subject the 
 property to a sale and transfer from the owner is, in 
 effect, a taking of the pro]ierty. 
 
 ''The requirement of a just compensation to be 
 made for private property taken for public use . . . 
 applies as well where the value or a part of the value 
 of the pro]-»erty is taken bv being subjected to the ]iay- 
 ment of a sum of money, as where the property itself, 
 or some interest therein, is directly taken for public 
 use" (Creighton r. Manson, Tl Cal. 627). 
 
 "This brings us to the question whether, if the in- 
 struction given in the present case was correct, the de- 
 fendant was thus left secure in his constitutional riulit 
 of 'just compensation' for the ])roperty so devoted to 
 the public use. 
 
 "The real value of the lots being less than the 
 amount assessed upon them, the whole property would 
 be necessarilv absorbed for satisfaction of the lien. The
 
 70 Law of Local Taxation. [Chap. 4 
 
 owner as a member of the community, would derive a 
 certain benefit from the improvements, in common with 
 all other citizens. But this being simply his right, in- 
 dependently of the transfer, would not be compensa- 
 tion in any sense. \Newhy v. Platte County^ 25 Mo. 
 258.] The enhanced value of the property would be 
 nothing to him, since it must pass into other hands. 
 His private property is thus literally taken for public 
 use, luitJioiit just compensation or any compensation at 
 all. 
 
 "An instruction which thus makes possible a pal- 
 pable violation of constitutional rights is necessarily 
 erroneous. It may follow with literal exactness the 
 terms of the legislative authority conveyed in the city 
 charter. But the Legislature can confer no power 
 which is constitutionally forbidden to every department 
 of civil authority. 
 
 "Constitutional guaranties must be paramount, 
 not merely in form, but in substance. Courts can not 
 sustain them otherwise than by loolcinig to the ultimate 
 effect and operation of an enactment or other measure 
 as ivell as to the shape of its presentation, 
 
 "We are of the opinion that no just compensation 
 is made, within the requirement of the Constitution, 
 when private property is taken without any benefit to 
 the owner; and that an assessment upon property for 
 public improvements to an amount exceeding the value 
 of the property is unconstitutional and void, hy uhat- 
 ever agency imposed." 
 
 The judgment was reversed and the cause re- 
 manded, but a rehearing was granted and the same 
 judge rendered the opinion on the rehearing. The court 
 say: 
 
 "Upon a second hearing of this cause, the defend- 
 ant in error insists that the municipal authority to 
 make assessments for lo^al improvement is in nowise
 
 Chap, 4] Effect of St. Louis to Use v. Allen. 71 
 
 referable to the right of eminent domain, but inheres 
 in the taxing powci- alone. From this ho argues that 
 the constitutional guaranty against the taking of pri- 
 vate property for public purposes without just com- 
 pensation is not infringed when such an assessment ex- 
 ceeds in amount the value of the property assessed, 
 so that the owner nmst neetls be deprived of his prop- 
 erty, as well as of the si^cial benefits which, in theory, 
 are supposed to afford a remuneration for tlie assess- 
 ment. If he thus loses all and gets absolutely nothing 
 in return, this is held, nevertheless, to be a constitu- 
 tional exercise of the taxing power. 
 
 "It may be admitted that most of the authorities 
 cited refer the authority under consideration to the 
 taxing power and deny that its origin is in eminent do- 
 miain. But in considering a question of constitutional 
 protection, the nominal source of an assumed power is 
 of far less moment than the effects of its exercise. The 
 power of taxation is inferred from the general grant 
 of legislative authority. But, like all general grants, 
 it must yield whenever found in conflict with any spec- 
 ial restriction. The restriction requiring just com- 
 pensation when one's property is taken for public pur- 
 poses is usually applicable in practice, to the power of 
 eminent domain. If, however, in a peculiar state of 
 facts, it shall be found directly hostile to a certain exer- 
 cise of the taxing power, or of any other power, the 
 restriction will be supreme, and the ]iower must so far 
 be surrendered. 
 
 ''The arg:ument of counsel admits a distinction be- 
 tween the ]X)wer to impose taxes for general purposes 
 and the power to make assessments u]>on pro]ierty to 
 defray the ex])enses of local im]>rovements. The dis- 
 tinction is really so broad that our Supreme Court ha>^ 
 said: 'The whole theory of local taxation or assess- 
 ments is that the improvements for which they are lev-
 
 72 Law of Local Taxation. [Chap. 4 
 
 ied afford a remuneration in the way of benefits. A law 
 which wonld attempt to make one person or a given 
 number of persons, under the guise of local assess- 
 ments, pay a general revenue for the public at large, 
 would not be an exercise of the taxing power, but an act 
 of confiscation' (JlcCormacl- v. Patchen, 53 jNIo. 30). 
 
 "It is thus seen that while special remuneration 
 has no concern with taxation for general purposes, it is 
 inseparable from the theory which sanctions assess- 
 ments for local improvements. If the special 're- 
 muneration in the way of benefits' be eliminated, then 
 the improvements are exclusively in the interest of the 
 general public, and the money raised to pay for them is, 
 in effect a section of the 'general revenue for the public 
 at large,' levied under the guise of local assessments. 
 ' This is, literally, confiscation, ' which is merely a mode 
 forbidden, like every other, of taking private property 
 for public purposes, without just compensation to the 
 owner. If, in the present case, the defendant's entire 
 property is to be subjected to the claim asserted for the 
 plaintiff, he will unquestionably be giving up his sub- 
 stance to the uses of the public, and to its revenues, 
 also, with no shadow of that 'remuneration in the way 
 of benefits' on which the right of local assessments de- 
 pends. The judgment is again reversed and the cause 
 remanded. It is gratifying to reflect [say the court in 
 conclusion] that the vital question involved is one which 
 secures the right of appeal to a tribunal whose wisdom 
 will correct any erroneous views herein admitted, and 
 whose determination will be final." That right was not 
 exercised. 
 
 Here this property, after all the benefits accruing 
 fromi this public improvement have been added to it, 
 was worth $1,025, and in the opinion in chief and on re- 
 hearing the tax was held to be unconstitutional. The 
 tax accrued prior to the Constitution of 1875 and w^as
 
 Chap. 4] Effect of St. Louis to Use v. Allen. 73 
 
 hence not affected by the restrictions contained in that 
 instrument. But this decision lias been coniijletely, si- 
 lently overruled. The opposite doctrine has been irre- 
 vocably established. These special assessments were 
 not embraced and were not intended to be embraced in 
 the restrictions on taxation written in the Missouri 
 Constitution of 1875. The reasons assigned were that 
 these taxes were for benefits conferred and the benefit 
 had to be special, ]ieculiar and exce]itive; a general 
 benefit rendered the tax unconstitutional. Tlie reader 
 will note that this is a tax of one-hundred and sixty- 
 three per cent on the land and accrued benefits, and we 
 are told this is not a burden. Some of us have in our 
 v^ain imaginings supposed tli.'it a local tax on our lands 
 and houses amounting to one-hundred per cent was a 
 burden but it is not. Here is a tax of one-hundred and 
 sixty-three per cent on this land with the accrued 
 benefits but it is leally not a burden. It is the Consti- 
 tution of the State of Missouri that says this tax of 
 one-hundred and sixty-three per cent is not a burden. 
 I wish to call the attention of the reader to this State 
 of our constitutional law. In its iniquity it is not ex- 
 ceeded in the history of the race. 
 
 At one time the Constitution of the United States 
 was invoked in Dred Scott v. Sanford, and a decision 
 was rendered by the Supreme Court of the United 
 States construing the Constitution of the United States 
 (and that decision became a part of that Constitution). 
 The Constitution of the United States thus constnied 
 was denounced as **A league with hell and a covenant 
 with the devil," but we submit that this Missouri Con- 
 stitution is hrll it.'^elf, and it beats the old devil sixty- 
 three per cent. 
 
 Now the law would not be satisfied with less than 
 sixty-three per cent more than the entire value of land, 
 improvement and benefit.
 
 74 Law of Local Taxation. [Chap. 4 
 
 On Decemiber 7, 1886, a little over nine years after 
 the rendition of the opinion in Zoeller v. Kellogg, 4 
 Mo. App. 163, the St. Louis Court of Appeals rendered 
 another opinion in a similar case of special tax on real 
 estate. The judge who rendered the opinion in Zoel- 
 ler V. Kellogg, 4 Mo. App. supra, was on the bench then, 
 and concurred in this opinion seemingly widely at var- 
 iance with the opinion in Zoeller v. Kellogg. The case 
 referred to is that of Allen v. Kremling, 23 Mo. App. 
 561. At 568, bottom paragraph, the court say: 
 
 ''When the present city charter (St. Louis) was 
 adopted, there was no limitation, either by legislative 
 l)rovision, or judicial construction, on the city's power 
 in levying these special taxes. The courts had uniform- 
 ly decided that the city's power under former charters, 
 to improve its streets and charge the cost of the im- 
 provement on the adjoining property, was a continuing 
 power. That this power might be exercised from time 
 to time, as the wants of the municipal corporation 
 might require, and that of the necessity or expediency 
 of its exercise, the governing body of the corporation 
 was the sole judge {McCormack v. Pafchen, 53 Mo. 33). 
 It is true that the theory upon which the constitutional 
 validity of such taxes was upheld was one of a corre- 
 sponding special benefit resulting to the property from 
 the improvement (Neenan v. Smith, 50 Mo. 525), but 
 since the property-owner could never he heard to say 
 that his property had not in fact been benefited, in op- 
 position to the legislative declaration that it had, the 
 theory of assessments was one tvhich he coidd never 
 practically controvert. {Seibert v. Tiffany, 8 Mo. App. 
 33). [Two years before this decision viz., October 
 term, 1884, the Supreme Court of Missouri had said in 
 City of Kansas to use of Coates v. Ridenour, 84 Mo. 
 253, at 261, that the property-owner when sued on a 
 tax-bill may ''entirely defeat a recovery by overthrow- 
 ing the theory of benefits conferred."] An instance of
 
 Chap. 4] Effect of St. Louis to Use v. Allen. To 
 
 seeming departure from tlio law, as above stated, is 
 foimd in Zodlcr v. Kellogg (4 Mo. App. 103), where 
 the court held that the assessment of a special tax, in 
 excess of the entire value of the lot, was equivalent to 
 confiscation, and could not be upheld on th(^ 
 theory of a special benefit to the lot; but it will be 
 noticed that the court arrived at that result by treating 
 the assessment as being in the nature of an exercise of 
 the power of eminent domain and not as an exercise of 
 the taxing ])ower, a holding which in view of subse- 
 quent decisions of the Supreme Court is not tenable." 
 [Farrar v. City of St. Louis, 80 Mo. 379, 394; 2 Dill. 
 j\Iun. Corp., sec. 752.] 
 
 Then the St. Louis charter, limiting special taxes 
 in amount, is held to be in the nature of a special ex- 
 emption from taxation to be strictly construed against 
 the i^roperty-owner claiming the exemption, and liber- 
 ally in favoi- of the city and contractor. 
 
 In Allen v. Kremling, 23 Mo. App. at 569, the court 
 say in reference to Zoeller v. Kellogg, 4 ^Mo. App. 163 : 
 
 "But it will be noticed that the court arrived at 
 that result [that the tax was imconstitutional] by treat- 
 ing the assessment as being in the nature of an exercise 
 of the right of eminent domain and not as an exercise 
 of the taxing i)Ower," etc. 
 
 In the motion for a rehearing, p. 167, the court 
 say: 
 
 ''The ])ower of taxation is inferred from the gen- 
 eral grant of legislative authority. But like all general 
 grants, it must yield whenever found in conflict with 
 any sj^ecial restriction. The restriction re(|uiring ju'^t 
 compensation when one's property is taken for public 
 purposes is usually a]ii)licable, in ])ractice, to the power 
 of eminent domain. If, however, in a ])eculiar state of 
 facts, it shall be found directly hostile to a certain exer- 
 cise of the taxing power, or of any other power the re-
 
 76 Law of Local Taxation. [Chap. 4 
 
 striction ivill he supreme and the power must so far he 
 surrendered.'' 
 
 The opinion of the court on rehearing in Zoeller v. 
 Kellogg must have been overlooked by the Judge ren- 
 dering the oxnnion in Allen v. Kremling, 23 Mo. App. 
 569. 
 
 In exercising the power of eminent domain the 
 party having the power to take usually declares such 
 purpose to take describing the property to be taken and 
 for what purpose and then begins court proceedings, 
 but property may be taken in fact without such decla- 
 ration of purpose and the party may deny that he takes 
 as in St. Louis v. Hill, 116 Mo. 527. St. Louis did take 
 although the city denied such taking. 
 
 In Inhabitants of Palmyra v. Morton, 25 Mo. 593, 
 at 595, the argument against the local tax was by the 
 court stated to be that it "Is obnoxious to the constitu- 
 tional provision which declares that private property 
 shall not be taken for public use without just compen- 
 sation. " The answer made by the court to the objec- 
 tion stated shows too narrow a construction of the con- 
 stitutional provision quoted. The court say in answer 
 to this objection : 
 
 ^'It may be observed, in the first place, that there 
 is no attempt here to exercise the right of eminent do- 
 main, for it was not proposed to condemn the defend- 
 ant 's property to public use, and it is unnecessary to 
 discuss the character, extent or limitation of that 
 power." This evidently is intended to state that this 
 constitutional provision applies only to condemnation 
 proceedings. If the public take the land without a con- 
 demnation proceeding, then the public is not bound to 
 pay just compensation. If the public are bound to pay 
 *'just compensation" onlj^ when it is proposed to con- 
 demn land to public use, then there never will be a pro- 
 ceeding to condemn; the state authorities will take it
 
 Chap. 4] Effect of St. Louis to Use v. Allen. 77 
 
 without coiideiiiiung it. Put this t'oiistruc-tioii on the 
 constitutional restriction in question and it will read 
 thus: ''Private property shall not be condemned for 
 public use without just compensation," etc. 
 
 If this be the rule of constitutional hiw, then pri- 
 vate property never will l)e condemned to public use. It 
 will be taken by the public for ])ublic use without being 
 condemned by the i)ublic and without being subjected 
 to this burden of i)aying "just compensation" before 
 getting title or disturbing the owner. 
 
 In the case of Powers v. Hurmert, 51 Mo. 136, the 
 land-owner's fence was taken but it was not con- 
 demned. 
 
 In Armstrong v. St. Louis, 69 Mo. 311, the land- 
 owner maintained ejectment for land embraced in the 
 street. The owner's land was taken for a street, but it 
 was not condemned for public use. 
 
 In Soulard v. St. Louis, 36 Mo. 546, the landowner 
 sued for the value of his land taken for public use 
 (street) and recovered. The city took the land but 
 never condemned it. The land was taken in trespass or 
 by wrong; the wrongdoer was sued and judgment ren- 
 dered for the value of the land, and when this judg- 
 ment was i)aid it operated to transfer by act of law the 
 title to the land to St. Louis for public use, but it was 
 not a condemnation proceeding. 
 
 The pro])er construction of constitutional provis- 
 ions guarding the property rights of individuals was 
 a subject of discussion in Boyd v. United States, 116 U. 
 S. 616, et seq. (A. D. 1886). The court, by ^\y. Jus- 
 tice Bradley, say, p. 621 : 
 
 "The clauses of the Constitution, to which it is 
 contended that these laws are re]nignant, are the 
 fourth and fifth amendments. The fourth declares, 
 ' The right of the ])eople to be secure in their persons, 
 houses, palmers, and effects, against imreasonable
 
 78 Law of Local Taxation. [Chap. 4 
 
 searches and seizures, shall not be violated, and no war- 
 rants shall issue, but upon probable cause, supported 
 by oath or affirumtion and particularly describing the 
 place to be searched, and the persons or things to be 
 seized.' The fifth article, amongst other things, de- 
 clares that no person * Shall be compelled in any crimi- 
 nal case to be a witness against himself.' 
 
 * * Note the language of these amendments : * The 
 right of the people to be secure in their . . . pa- 
 pers . . . against unreasonable searches and seiz- 
 ures shall not be violated. ' AVliat is an unreasonable 
 search and seizure? A man shall not be compelled to 
 be a witness against himself in a criminal case. AVhat 
 is a criminal case ? These are the questions at issue in 
 the case involving the constitutional validity of an act 
 of Congress, June 22, 1874 (18 Stat, at Large 186). 
 
 "The suit was an information filed by the district 
 attorney of the United States in the district court for 
 the southern district of New York in July, 1884, in a 
 ease of seizure and forfeiture of property against thir- 
 ty-five cases of plate glass, seized by the collector as 
 forfeited under the revenue laws. 
 
 "It is declared by that section (12) that any owner, 
 importer, consignee, etc., who shall, with intent to de- 
 fraud the revenue, make or attempt to make, any entry 
 of imported merchandise, by means of any fraudulent 
 or false invoice, affidavit, letter or paper, or by means 
 of any false statement, written or verbal, or who shall 
 be guilty of any willful act or omission by means 
 whereof the United States shall be deprived of the law- 
 ful duties, or any portion thereof, accruing upon the 
 merchandise, or any portion thereof, embraced or re- 
 ferred to in such invoice, affidavit, letter, paper, or 
 statement, or affected by such act or omission, shall for 
 each offense be fined in any sum not exceeding $5,000 
 nor less than $50, or be imprisoned for any time not
 
 Chap. 4] Effect of St. Louis to Use v. Allen. 79 
 
 exceeding two years or lx)tli; and in addition to such 
 fine, such merchandise shall be forfeited. 
 
 "The charge was that the goods in question were 
 imported into the United 8tates to the i)ort of New 
 York, subject to tlie payment of duties; and that tlie 
 owners or agents of said merchandise, or other person 
 unknown, committed the alleged fraud, which was de- 
 scribed in the words of the statute. The plaintiffs in 
 error entered a claim for the goods, and pleaded that 
 they did not become forfeited in the manner and fonn 
 as alleged. On the trial of the cause it became import- 
 ant to show the quantity and value of the glass contain- 
 ed in twenty-nine cases previously imported. To do 
 this the district attorney offered in evidence an order 
 made by the district judge under section 5 of the same 
 act of June 22, 187-J-, directing notice under th*- 
 seal of the court to be given to the claimants, requiring 
 them ^0 produce the invoice of the twenty-nine cases. 
 The claimants in obedience to the notice, but objecting 
 to its validity and to the constitutionality of the law, 
 produced the invoice ; and when it was offered in evi- 
 dence by the district attorney, they objected to its re- 
 ception on the ground that, in a suit for forfeiture, no 
 evidence can be compelled from the claimants them- 
 selves, and also that the statute, so far as it compels 
 the production of evidence to be used against the clai- 
 mants, is unconstitutional and void." (S. C, page 
 517-8). 
 
 The evidence was received and the juiy found for 
 the United States, condemning the thirty-five cases of 
 glass, followed by judgment of forfeiture, taken on er- 
 ror to the United States Circuit Court, judgment there 
 affii-med and thence taken on error to the Supreme 
 Court of the I'nited States. The constitutional valid- 
 ity of section 5 of act June 22, 1874 (18 U. S. Stat. 
 186), is involved and in controversy.
 
 80 Law of Local Taxation. [Chap. 4 
 
 Under this section in all suits and proceedings not 
 criminal, the United States District attorney might 
 file his motion stating that defendant or claimant had 
 in his jjossession certain papers material to the United 
 States in the causes provided for. The United States 
 district attorney stated the substance of the contents 
 of these papers and thereupon an order was made to be 
 served on the claimant requiring him to produce the 
 papers and permit an insj^ection thereof; the papers 
 were not authorized to be seized; the claimant was sim- 
 ply required to produce the paper. If he failed to pro- 
 duce the paper the contents were taken to be as stated 
 by the United States district attorney. 
 
 Here the claimant jDroduced the paper under the 
 order but objected to its being used as evidence because 
 this fifth section was unconstitutional as being con- 
 trary to the fourth and fifth amendments to the Consti- 
 tution of the United States. It was claimed to be an 
 unreasonable search and seizure under the fourth 
 amendment, and compelling a witness to give evidence 
 against himself in a criminal case contrary to the fifth 
 amendment. 
 
 Then judgment of forfeiture was sought to be sus- 
 tained under the fifth section of the Act of Congress its 
 language being, "in all suits and proceedings other 
 than criminal." It was said that this suit to forfeit 
 these goods was not a criminal suit or proceeding, and 
 hence not within the terms of the fifth amendment. 
 
 Under the fourth amendment the argument for the 
 constitutional validity of the act of Congress was that 
 there was no search or seizure either authorized or at- 
 tempted. The party was simply required to produce 
 papers; he kept them in his possession and merely al- 
 lowed L'nited States attorney to inspect them. It was 
 said that this law did not authorize any search or seiz- 
 ure and what was done was not a search or seizure. Say 
 the court, at page 633 :
 
 Cliap. 4] Effect of St. Louis to Use v. Allen. 81 
 
 "Reverting to the peculiar pliraseology of this act 
 and to the information in the i)resent case, which is 
 founded on it, we have to deal with an act which ex- 
 pressly excludes criminal proceedings from its opera- 
 tion (although embracing civil suits for penalties and 
 forfeitures), and with an infonnation not technically a 
 criminal proceeding, and neither, therefore, within the 
 literal terms of the fifth amendment to the Constitu- 
 tion any more than it is within the literal terms of the 
 fourth. Does this relieve the proceedings or the law 
 from being obnoxious to the prohibitions of either? "VVe 
 think not; we think tliei/ are uiflti)i the spirit of both." 
 
 This law is obnoxious to both amendments and 
 therefore void. For the paper produced no search was 
 authorized or made. He was simply required to pro- 
 duce the paper. This is the ecpiivalent of a search and 
 an unreasonable search. Whenever the cost of a public 
 improvement exceeds the special benefit the sale of 
 the abutting property to pay for it is equivalent to tak- 
 ijig that property for public use without just compensa- 
 tion. The paper was produced but kept in the owner's 
 possession. He was merely required to pennit an in- 
 spection. This was not a seizure, but it was the equiva- 
 lent of a seizure. The Act of Congress held unconsti- 
 tutional provides that this inspection may be had in 
 cases other than criminal and the evidence may be used 
 in cases other than criminal. A case to forfeit goods 
 for violation of the revenue law is not a criminal case, 
 but it is substantially so. He is not giving evidence 
 against himself in a criminal case but this is substan- 
 tially so. The court say (S. C, page 634) : 
 
 "As, therefore, suits for penalties and forfeitures 
 incurred by the commission of offenses against the law. 
 of this (|uasi-criminal nature, we think that they are 
 within the reason of criminal proceedings for all the 
 purposes of the fourth amendment of the Constitution 
 
 6
 
 82 Law of Local Taxation. [Chap. 4 
 
 and of that i)ortiou of the fifth amendment which de- 
 clares that no person shall be compelled in any crimi- 
 nal case to be a witness against himself; and we are fur- 
 ther of the opinion that a compulsory production of the 
 private books and papers of the owner of goods sought 
 to be forfeited in such a suit is compelling him to be a 
 witness against himself, within the meaning of the fifth 
 amendment to the Constitution, and is the equivalent 
 of a search and seizure— and an unreasonable search 
 and seizure — within the meaning of the fourth amend- 
 ment. 
 
 "Though the proceeding in question is divested of 
 many of the aggravating incidents of actual search and 
 seizure, yet, as before said, it contains their substance 
 and essence, and effects their substantial purpose. It 
 may be that it is the obnoxious thing in its mildest and 
 least repulsive form; but illegitimate and unconstitu- 
 tional practices get their first footing in that way, 
 namely, by silent approaches and slight deviations 
 fi'om legal modes of procedure. This can only be ob- 
 viated by adhering to the rule that constitutional pro- 
 visions for the security of persons and property should 
 he liberally construed. A close and literal construction 
 deprives them of half their efficacy and leads to grad- 
 ual depreciation of the right as if it consisted more in 
 sound than in substance. It is the duty of courts to he 
 tratchfid for the constitutional rights of the citizen and 
 against any stealthy encroachments thereon. Their 
 motto should be ohsta principiis." [Have not our 
 courts changed "Citizen" to "Contractor. "—Ess.] 
 
 "We have no doubt that the legislative body is 
 actuated by the samie motives; but the vast accumula- 
 tion of public business brought before it sometimes pre- 
 vents it, on a first presentation, from noticing objec- 
 tions which become develo])ed by time and the practi- 
 cal application of the objectionable law."
 
 Chap. 4] Effect of St. Louis to Use v. Allen. 83 
 
 The above was a revenue or tax case. It was es- 
 sentially a tax case. Our courts reverse the rule. ''The 
 limitation is in the nature of restriction of a pre-exist- 
 ing power and so far as the property-owner is concern- 
 ed, an exemption from taxation, and as such to be con- 
 strued strictly. Assuming that the clause could with 
 equal reason, be construed to mean, either what the 
 plaintiff claims, or what the defendant claims it does 
 mean (and that is the best that can be said for the de- 
 fendant's claim), and it results that the i)laintiff' s con- 
 struction (tax-bill holder) must prevail, because as to 
 him (the contractor), representing the municipality, 
 the clause is a restriction of a pre-existing power, but 
 as to the defendant (property-owner) it is the grant of 
 a new exemption." [Allen v. Kremling, 23 Mo. App. 
 561 at 569 bottom.]
 
 CHAPTER 5. 
 
 THEORIES OF TAXATION. 
 
 In the different states and territories of the Union 
 and in the United States, tliere is no such thing as a tax 
 by conmion law; it is all by statute. We construe and 
 apply statutes. The British Constitution is no re- 
 striction on king, lords and connnons. The American 
 constitutions restrict the executive the legislative and 
 judicial powers. That there may be no mistake about 
 our constitutions, they are put in writing. There are 
 two theories on which local taxation is generally sup- 
 ported. The first is that it is a part of the general tax- 
 ing power of the government. It is not conferred by 
 the Constitution. It is not limited by it or by the usual 
 bill of rights in our state constitutions; that it is a leg- 
 islative power; that the courts can not control it. That 
 in the absence of special express definite constitutional 
 limitations in terms beyond any reasonable doubt the 
 legislative power may tax white horses and exempt all 
 others; that they may tax land and exempt houses. 
 They may tax it by the acre, by the front foot or ac- 
 cording to value; they may make the tax a personal 
 charge only or make it a lien on land or other property. 
 They may hold the individual personally liable with all 
 he has and all he may ever acquire without homestead 
 or exemptions. The power to tax is the power to de- 
 stroy. The power to tax exists ; that the judiciary have 
 no power to control this exercise of legislative power; 
 that no act of legislation levying or authorizing the 
 levy of any tax is or can be subject to "any judicial 
 veto" on the part of any court. 
 
 (84)
 
 Chap. 5] Theories of Taxation. 85 
 
 The second theory is that this tax is imposed to 
 pay for a benefit conferred on tlie owner's ])roperty; 
 tliat the tax is thei'cfore no bui'den; tliat tliis tax is 
 special in that it is a benefit to the person and ])roperty 
 taxed ; that the tax may be equal to or less than the bene- 
 fit conferred; that the tax can never exceed the benefit 
 and that the benefit for which the tax may be levied is 
 special, peculiar, exceptive not enjoyed in common with 
 other like property in the vicinity. That if the pro})- 
 erty is not benefited then this taxation is confiscation 
 contraiy to all constitutional law. We shall inquire 
 into the second ground first. 
 
 The present Constitution of Missoui'i took effect 
 November 30, 1875. Look at our constitutional history. 
 Section 19 of article 13 (Declaration of Rights, Rev. 
 Statutes 1825, vol. I, p. 61), Constitution of Missouri, 
 adopted July 19, 1820, is as follows: 
 
 ''19. That all ])roperty subject to taxation in 
 this State shall be taxed in proportion to its value." 
 
 Constitution of ] 865, adopted April 8, 1865 (Gen. 
 Statutes 1865, p. 24), section 30, article 1, Declaration 
 of Rights, is thus: "shall be" is changed to "ought to 
 be:" 
 
 "30. That all property subject to taxation ought 
 to be taxed in pro})ortion to its value." 
 
 In article 4, section 27, are a number of restric- 
 tions on the powers of the Legislature, among which is 
 one prohibiting it from "exempting any pro]ierty of 
 any named person or corporation from taxation" by 
 special act. Section 16, article 11, State Constitution 
 1865 (found in Gen. Statutes 1865, p. 43), is thus: 
 
 "16. No property, real or jiersonal, shall be ex- 
 empt from taxation, exce]it such as may be used exclu- 
 sively for public schools, and such as may belong to 
 the United States, to the State, to counties, or to mu- 
 nicipal corporations, within this State."
 
 86 Law of Local Taxation. [Chap. 5 
 
 The preceding sections were thus : 
 
 *'13. The credit of the State, shall not be given or 
 loaned in aid of any person, association or corpora- 
 tion; nor shall the State hereafter become a stock- 
 holder in any corporation or association, except for the 
 imrpose of securing loans heretofore extended to cer- 
 tain railroad corporations by the State" (Const. 1865). 
 
 "14. The General Assembly shall not authorize 
 any county, city or town to become a stockliolder in, or 
 to loan its credit to any company, association, or cor- 
 poration, unless two-thirds of the qualified voters of 
 such county, city or town, at a regular or special elec- 
 tion to be held therein, shall assent thereto." 
 
 ''15. The General Assembly shall have no power 
 for any purpose whatever to release the lien held by 
 the State upon any railroad" (Const. 1865). 
 
 These sections bear somewhat on the power to tax 
 and hence are inserted here. 
 
 I copy the whole of article 10 of the Missouri Con- 
 stitution of 1875. 
 
 Article X. 
 
 " REVENUE and taxation. 
 
 ''Section 1. The taxing power may be exercised 
 by the General Assembly for state pui-poses, and by 
 counties and other municipal corporations, under au- 
 thority granted to them by the General Assembly, for 
 county and other corporate purposes. 
 
 "Sec. 2. The power to tax corporations and cor- 
 porate property shall not be surrendered by act of the 
 General Assembly. 
 
 "Sec. 3. Taxes may be levied and collected for 
 public purposes only. They shall be uniform upon the 
 same class of subjects within the territorial limits of 
 the authority le^^ing the tax, and all taxes shall be lev- 
 ied and collected by general laws.
 
 Chap. 5] TiiEoiiiKs OF Taxation. 87 
 
 ''Sec. 4. All property subject to taxation shall be 
 taxed in proi)ortion to its value. 
 
 "Sec. 5. All railroad corporations in this State, 
 or doing business therein, shall l)e subject to taxation 
 for state, county, school, municipal and other purposes, 
 on the real and personal i)i'Oi)erty owned or used by 
 them, and on their gross earnings, their net earnings, 
 their franchises and their capital stock. 
 
 "Sec. 6. The property real and personal, of the 
 State, counties and other municipal coqiorations and 
 cemeteries shall be exempt from taxation. Lots in in- 
 corporated cities or towns, or within one mile of the 
 limits of any such city or town, to the extent of one 
 acre, and lots one mile or more distant from such cities 
 or towns to the extent of five acres, with the buildings 
 thereon, may be exempted from taxation, when the 
 same are used exclusively for religious worship, for 
 schools, or for puqjoses purely charitable; also such, 
 property real or personal as may be used exclusively 
 for agricultural or horticultural societies; pro\dded, 
 that such exemptions shall be only by general law. 
 
 ''See. 7. All laws exempting property from taxa- 
 tion, other than the property above enumerated, shall 
 be void. 
 
 "Sec. 8. The state tax on property, exclusive of 
 the tax necessary to pay the bonded debt of the State, 
 shall not exceed twenty cents on the hundred dollars 
 valuation; and whenever the taxable ])roperty of the 
 State shall amount to nine hundred million dollars, the 
 rate shall not exceed fifteen cents. 
 
 "Sec. 9. No county, city, town or other municipal 
 corporation, nor the inhabitants thereof, nor the prop- 
 erty therein, shall be released or discharged from their 
 or its proportionate share of taxes to be levied for 
 state purposes, nor shall commutation for such taxes be 
 authorized in anv form whatsoever.
 
 88 Law of Local Taxation. [Chap. 5 
 
 *'Sec. 10. The General Assembly shall not impose 
 taxes upon counties, cities, towns or other municipal 
 corporations; or upon the inhabitants or property 
 thereof, for county, city, town or other municipal pur- 
 poses; but may by general laws, vest in the corporate 
 authorities thereof, the power to assess and collect 
 taxes for such purposes. 
 
 *'Sec. 11. Taxes for county, city, town and school 
 purposes, may be levied on all subjects and objects of 
 taxation; but the valuation of property therefor shall 
 not exceed the valuation of the same property in such 
 town, city or school district for state and county pur- 
 poses. For county purposes the annual rate on prop- 
 erty, in counties having six million dollars or less shall 
 not in the aggregate, exceed fifty cents on the himdred 
 dollars valuation; in counties having six million dol- 
 lars and under ten million dollars, said rate shall not 
 exceed forty cents on the hundred dollars valuation ; in 
 counties having ten million dollars and under thirty 
 million dollars, said rate shall not -exceed fifty cents on 
 the hundred dollars valuation and in counties having 
 thirty million dollars or more said rate shall not exceed 
 thirty-five cents on the hundred dollars valuation. For 
 city and town purposes the annual rate on property in 
 cities and towns having thirty thousand inhabitants or 
 more, shall not, in the aggregate exceed one hundred 
 cents on the hundred dollars valuation; in cities and 
 towns having less than thirty thousand and over ten 
 thousand inhabitants, said rate shall not exceed sixty 
 cents on the hundred dollars valuation ; in cities and 
 towns having less than ten thousand and more than 
 one thousand inhabitants said rate shall not exceed 
 fifty cents on the hundred dollars valuation; and in 
 towns having one thousand inhabitants or less said 
 rate shall not exceed twenty-five cents on the hundred 
 dollars valuation. For school pui7>oses, in districts, tlie
 
 Chap. 5] Theouies of Taxation. 89 
 
 annual rate on property, shall not exceed forty cents on 
 the hundred dollars valuation: Provided, the afore- 
 said amiual rates for school purposes may ]ye increased 
 in districts formed of cities and towns to an amount 
 not to exceed one dollar on the hundred dollars valua- 
 tion; and in other districts to an amount not to exceed 
 sixty-five cents on the hundred dollars valuation, on the 
 condition that a majority of the voters who are tax- 
 payers, voting at an election to decide the question, 
 vote for said increase. For the purpose of erecting 
 public buildings in counties, cities or school districts, 
 the rates of taxation herein limited may be increased 
 when the rate of such increase and the ]nirpose for 
 which it is intended shall have been submitted to a vote 
 of the people and two-thirds of the qualified voters of 
 such county, city or school district voting at such elec- 
 tion shall vote therefor. The rate herein allowed to 
 each county shall be ascertained by the amount of tax- 
 able property therein, according to the last assessment 
 for state and county purposes, and the rate allowed to 
 each city or town by the number of inhabitants, ac- 
 cording to the last census taken under the authority of 
 the State, or the United States ; said restrictions as to 
 rates shall ap])Iy to taxes of every kind and descrijv 
 tion, whether general or special, except taxes to pay 
 valid indebtedness now existing or bonds which may 
 be issued in renewal of such indebtedness. 
 
 "Sec. 12. No county, city, town, townshi]), school 
 district or other political corporation or subdivision of 
 the State, shall be allowed to become indebted in any 
 manner or for any purpose to an amount exceeding 
 in any year the income and revenue ])rovided for such 
 year, without the assent of two-thirds of the voters 
 thereof voting at an election to be held for that pur- 
 pose; nor in cases requiring such assent shall any in- 
 debtedness be allowed to be incurred to an amount in-
 
 [H) Law of Local Taxation. [Chap. 5 
 
 eluding existing indebtedness, in the aggregate, exceed- 
 ing five per centum on the value of the taxable property 
 therein, to be ascertained by the assessment next before 
 the last assessment for state and county purposes, pre- 
 vious to the incurring of such indebtedness : Provided, 
 that with such assent any county may be allowed to be- 
 come indebted to a larger amount for the erection of a 
 court house or jail: and provided further, that any 
 county, city, town, township, school district or other po- 
 litical corporation, or subdivision of the State, incur- 
 ring any indebtedness, requiring the assent of the vot- 
 ers as aforesaid, shall before or at the time of doing so, 
 provide for the collection of an annual tax sufficient to 
 pay the interest on such indebtedness as it falls due, 
 and also to constitute a sinking fund for payment of 
 the principal thereof, within twenty years from the 
 time of contracting the same. 
 
 ''Sec. 13. Private property shall not be taken or 
 sold for the payment of the corporate debt of a munic- 
 ipal corporation. 
 
 "Sec. 14. The tax authorized by the sixth sec- 
 tion of the ordinance adopted June sixth, one thou- 
 sand eight hundred and sixty-five, is hereby abolished, 
 and hereafter there shall be levied and collected an 
 annual tax sufficient to pay the accruing interest upon 
 the bonded debt of the State, and to reduce the princi- 
 pal thereof each year by a sum not less than two hun- 
 dred and fifty thousand dollars ; the proceeds of which 
 tax shall be paid into the state treasury, and appro- 
 priated and paid out for the purposes expressed in the 
 first and second subdivisions of section forty-three of 
 article four of this Constitution. The funds and re- 
 sources now in the state interest and state sinking 
 funds shall be appropriated to the same purposes ; and 
 whenever said bonded debt is extinguished, or a sum 
 sufficient therefor has been raised, the tax provided for 
 in this section shall cease to l)e assessed.
 
 Chap. 5] Theories of Taxation. 91 
 
 "See. 15. All moneys now or at any time hereaf- 
 ter, in the state treasury, belonging to the State, shall 
 immediately on the reeeii)t thereof, be deposited by the 
 treasurer to the credit of the State for the benefit of the 
 funds to which they respectively belong, in such bank 
 or banks as he may from time to time, with the ap- 
 proval of the governor and attorney-general, select, the 
 said bank or banks giving security, satisfactory to the 
 governor and attorney-general, for the safe-keeping 
 and payment of such deposits, when demanded by the 
 state treasurer on his check — such bank to pay a bonus 
 for the use of such deposits not less than the bonus 
 paid by other banks for similar deposits ; and the same 
 together with such interest and profits as may accrue 
 thereon, shall be disbursed by said treasurer for the 
 purposes of the State according to law, upon warrants 
 drawn by the state auditor, and not otherwise. 
 
 "Sec. 16. The treasurer shall keep a separate ac- 
 count of the funds and the number and amount of war- 
 rants received and from whom ; and shall publish in 
 such manner as the governor may designate, quarterly 
 statements, showing the amount of State moneys and 
 where the same are kept or deposited. 
 
 "Sec. 17. The making of profit out of state, county 
 city, town or school district money, or using the same 
 for any purpose not authorized by law, shall be deemed 
 a felony, and shall be ]iunished as provided by law. 
 
 "Sec. 18. There shall be a state board of equaliza- 
 tion, consisting of the governor, state auditor, state 
 treasurer, secretary of state and attorney-general. The 
 duty of said board shall be to adjust and equalize the 
 valuation of real and i^ersonal proi)erty among the sev- 
 eral counties in the State and it shall perform such 
 other duties as are or may be prescribed by law. 
 
 ' ' Sec. 19. No moneys shall ever be paid out of the 
 treasury of this State, or any of the funds under its
 
 92 Law of Local Taxation. [Chap. 5 
 
 management, except in pursuance of an appropriation 
 by law ; nor unless such payment be made, or a warrant 
 shall have been issued therefor, within two years after 
 the passage of such appropriation act; and eveiy such 
 law, making a new appropriation, or continuing or re- 
 viving an appropriation, shall distinctly specify the 
 sum appropriated, and the object to which it is to be 
 applied; and it shall not be sufficient to refer to any 
 other law to fix such sum or object. A regular state- 
 ment and account of the receipts and exj^enditures of 
 all public money shall be published from time to time. 
 
 ''Sec. 20. The moneys arising from any loan, debt 
 or liability, contracted by the State, or any county, city, 
 town, or other municipal corporation, shall be applied 
 to the purposes for which they were obtained, or to the 
 repayment of such debt or liability, and not otherwise. 
 
 "Sec. 21. No corporation, company or association 
 other than those formed for benevolent, religious, 
 scientific or educational purposes, shall be created or 
 organized under the laws of this State, unless the per- 
 sons named as corporators shall, at or before the filing 
 of the articles of association or incorporation, pay into 
 the state treasury fifty dollars, for the first fifty thou- 
 sand dollars or less of capital stock, and a further sum 
 of five dollars for every additional ten thousand dollars 
 of its capital stock. And no such corporation, com- 
 pany or association shall increase its capital stock 
 without first joaying into the treasury five dollars for 
 every ten thousand dollars of increase: Provided, 
 that nothing contained in this section shall be con- 
 strued to prohibit the General Assembly from levying 
 a further tax on the franchise of such corporation." 
 
 The work of the convention that framed the Con- 
 stitution of Missouri of 1875 (our present Constitu- 
 tion) was completed August 2, 1875. It was adopted 
 November 30, 1875. The 58th volume of Missouri Ee-
 
 Chap. 5] Theories of Taxation. 93 
 
 jjorts was published tliat year. The nienibers of the 
 convention had tlie advantage of all the decisions of 
 the Supreme Court of Missouri up to that time. And 
 they made amendments in constitutional law, aiming 
 doubtless to remedy defects and imi)erfections in con- 
 stitutional law made manifest in the history, the judi- 
 cial history of the State. Prior to the year 1860 the 
 State issued bonds and took stock in railways to en- 
 courage railway building, to develop the country, its 
 commerce and manufactures. These bonds became a 
 heavy burden as they had to be paid from a state tax. 
 The stock taken by the State and paid for by its bonds 
 became worthless. The State can no longer lend its aid 
 by issuing bonds to railroads. The Constitution of 
 1875 relieved from this tax for the future. Then the 
 Legislature for a series of years authorized cities, 
 toTATis, villages, counties and even townships, and strips 
 of land not organized, to take stock in or lend their aid 
 to railroad building and to issue their bonds to pay for 
 such stock or as a mere encouragement to railroad 
 building. By the Constitution of 1865 this power was 
 limited to cases where the bonds had been voted by the 
 taxpayers or voters. By the Constitution of 1875 no 
 city, town, county, townshij) or other municipal cor- 
 poration can take stock in or loan its credit to any com- 
 pany, association or corporation. This was a limita- 
 tion on the power to tax. 
 
 Article 10 of the Constitution of Missouri, framed 
 August, 1875, adoi)ted November oO, 1875, is a series 
 of limitations on the power to tax by the State, by its 
 counties, its cities, towns, villages, townshijis and other 
 subdivisions of the State. It is a series of limitations 
 on the power to tax, thus rendering more secure the 
 right of the citizen to hold and enjoy private property. 
 
 By section 8 of article 10, the state tax (exclusive 
 of the tax to pay bonded indebtedness of the State) per
 
 94 Law of Local Taxation. [Chap. 5 
 
 year shall not exceed twenty cents on the hundred dol- 
 lars valuation or one-fifth of one per cent, and when we 
 reach an assessment of nine hundred millions in tax- 
 able property it shall not exceed fifteen cents on the 
 hundred dollars valuation or three-twentieths of one 
 per cent. 
 
 By section 10 the General Assembly can not im- 
 pose taxes upon counties, cities, towns, or other mu- 
 nicipal corporations, or upon the inhabitants thereof 
 for county, city or other municipal purposes; the power 
 to assess and collect such taxes must be delegated un- 
 der general laws to the respective corporate authori- 
 ties. 
 
 Section 11 of this article 10 of tlie Missouri Con- 
 stitution, adopted November 30, 1875, is another and 
 further limitation on the taxing power. It seeks to 
 make its limitations effectual in two ways: First, by 
 limiting the rate of taxation ; and second, by prohibit- 
 ing an overvaluation for tax purposes. In all cases of 
 property taxation there must be an assessment for 
 state and county purposes, for "All property subject 
 to taxation shall be taxed in proportion to its value." 
 ProjDerty assessed at a given value for state taxation 
 can not be assessed at a g'reater valuation for any mu- 
 nicipal purpose, either city, town, township, village or 
 any other municipal purpose. The citizen is protected 
 from any increase of taxes arising from an increase of 
 assessed valuation while the rate remains unchanged. 
 
 The annual rates for county purposes are limited 
 by the amount of taxable property in the county; the 
 city rates are controlled by the number of inhabitants 
 according to last enumeration by last United States 
 census, or by the last authoritative state census. 
 
 The rates for county purposes are thus: In coun- 
 ties having a property assessed at six millions or less, 
 fifty cents on the hundred dollars valuation ; in coun-
 
 Chap. 5] Theories of Taxation. 95 
 
 ties having an assessed valuation of over six millions 
 and under ten millions, forty cents; over ten millions 
 and under thirty millions, fifty cents; and thirty mil- 
 lions or more, the tax must not exceed thirty-five cents 
 on the hundred dollars valuation. 
 
 For city and town purposes the annual rate ( regu- 
 lated by i)0]mlation) shall not exceed one dollar on the 
 hundred dollars valuation, or one per cent. In towns 
 and cities of less than thirty thousand inhabitants and 
 more than ten thousand inhabitants, not exceeding 
 sixty cents; in towns of less than ten thousand and 
 more than one thousand inhabitants, fifty cents; in 
 towns of less than one thousand inhabitants, not ex- 
 ceeding twenty-five cents. 
 
 For schools, not exceeding forty cents on the hun- 
 dred dollars valuation, subject to be increased to one 
 dollar on the hundred dollars valuation in districts 
 formed of cities and towns, and in other districts to 
 sixty-five cents if authorized by a vote of taxpayers. 
 
 The values in all cases to be ascertained and de- 
 termined by the last assessment for state and county 
 taxes and the number of inhabitants according to the 
 last census by the United States or under the authority 
 of some state statute. Says this section : 
 
 ''Said restrictions as to rates shall apply to taxes 
 of every kind and description, whether general or s]ie('- 
 ial, excei)t taxes to pay valid indebtedness now existing 
 or bonds which may be issued in renewal of such in- 
 debtedness." 
 
 Special or local taxes for local im])rovements made 
 on or adjoining the i)rox^erty taxed are said to be not 
 included in these restrictions and the reasons for so 
 holding form in part the subject of this chapter. Sec- 
 tion 18 of article 10 is a still further limitation on the 
 power to tax. The city assessor might put a higher 
 valuation than the countv assessor on the same
 
 96 Law of Local Taxation, [Chap. 5 
 
 property and this would increase the amount of 
 taxes. This is guarded against by the provision 
 that the assessment for other purposes shall not 
 exceed that for state and county purposes. An asses- 
 sor in one county may assess very low ; in another 
 county he may assess very high. A cow may be assess- 
 ed in one county (e. g., where they still resist taxation 
 to pay railway bonds), at twenty dollars; in another 
 (where some city dominates) at two hundred dollars. 
 If a county assessor assess too high or too low, his ac- 
 tion may be corrected by a county board of equaliza- 
 tion. Horses may be assessed at ten dollars in one coun- 
 ty and at fifty in another county. Hence, this state board 
 of equalization, to make values as near as possible alike 
 all over the State. The rights of the citizen are endan- 
 gered in two ways : First, they assess the largest pos- 
 sible rate ; second, they make the largest possible valua- 
 tion. The Constitution means that too low an assess- 
 ment shall not be made to avoid a just share of the 
 burdens of the state government, nor shall too high an 
 assessment be made to increase both city, county and 
 other municipal taxes to pay for what may be the wild 
 extravagances of some city or town. It restricts city 
 taxation. It renders property secure to that extent in 
 the cities of the State. 
 
 But the framers of this Constitution were perfectly 
 aware that all these limitations on the taxing power 
 were absolutely futile unless the debt-making power 
 be also limited; hence, section 12 of the Constitution 
 of Missouri adopted in 1875. By that section the 
 power of municipalities to make debts is curtailed. No 
 county, city, town, township, school district or other 
 political corporation or subdivision of the State shall 
 be allowed to become indebted in any manner or for 
 any purpose to an amount exceeding in any one year 
 the income and revenue provided for such year, with-
 
 Chap. 5J Theories of Taxation. 97 
 
 out the assent of two-tliirds of the voters; and in cases 
 recjuiring such assent, no iuidebtedness shall be allowed 
 to be incurred exceeding five per cent of the taxable 
 property according to the last assessment for state pur- 
 poses, and this five per cent includes existing indebted- 
 ness. 
 
 At the time of the adoption of the Constitution of 
 1875, we had numerous decisions of our state Supreme 
 Court construing various provisions of our state con- 
 stitution and various statutes of the State, and defining 
 and limiting this special, peculiar power of taxation. 
 
 LocJiWOod and Others r. City of St. Louis, is the 
 first case in Missouri on local taxation. 
 
 The General Assembly of ^Missouri passed the fol- 
 lowing act, approved March 12, 1&49, entitled "An Act 
 to provide a general system of sewerage in the City of 
 St. Louis:" 
 ''Be it enacted by the General Assembly of the State 
 
 of Missouri as follous: 
 
 "Section 1. The mayor and city council of St. 
 Louis shall cause by ordinance, the city to ]:>e laid oft" 
 into districts to be drained by principal and lateral or 
 tributary sewers, having reference to a general plan of 
 drainage by sewers for the whole city, and number and 
 record the same. 
 
 "Section 2. Whenever a majority of the owners 
 of real estate within any district shall petition for the 
 construction of sewers in said district, the city council 
 shall have power by ordinance to levy and collect a 
 special tax on the real estate within said district so 
 drained, not to exceed one half of one per centum i3er 
 annum on the assessed value of said real estate, for the 
 purpose of constructing said sewers, which tax shall be 
 annually levied and collected as other city taxes, and 
 shall constitute a lien on the real estate on which it is 
 assessed; and shall not be repealed or altered until the 
 debt created thereby shall have been fully paid. 
 
 7
 
 98 Law of Local Taxation. [ChaiD. 5 
 
 "Section 3. Whenever a petition signed as afore- 
 said is presented to the city council, they shall provide 
 by ordinance for the letting and construction of the 
 sewers, or such parts thereof as shall be necessary, and 
 may from time to time extend, enlarge or alter the 
 same under such terms and on such conditions as they 
 may deem necessary. 
 
 ''Section 4. The mayor and city council, upon the 
 presentation of a petition as aforesaid, may borrow 
 any sum of money necessary for the construction of the 
 sewers in any district, and issue the bonds of the city 
 for the same, payable and predicated in interest and 
 principal, upon the tax in the second section of this act 
 mentioned. 
 
 "Section 5. All moneys collected under and by 
 virtue of this act, shall be applied to the district from 
 which it is so collected, and to no other purpose or 
 use." 
 
 Pursuant to the terms of this act, the city of St. 
 Louis was laid off into districts for sewerage pur- 
 ]joses, and among others was the district including 
 within its boundaries St. George's Chapel of which Mr. 
 Lockwood and others were trustees. Pursuant to a pe- 
 tition filed, the city undertook to construct and con- 
 structed the sewers in question and levied the tax of 
 one-half of one per cent per annum. St. George 's church 
 refused to pay the tax and the church was advertised 
 for sale by Mr. Henry Overstoltz, comptroller of St. 
 Louis. The trustees of the church applied for and ob- 
 tained a temporary injunction. The petition sets out 
 that these special taxes for the year 1854 were levied 
 on St. George's church for the construction of sewers 
 in the district in which St. George's church was sit- 
 uated. The claim made (although not so stated in 
 terms in the petition) was that the property being 
 church property was by law exempt from the tax.
 
 Chap. 5J Theories of Taxation. 99 
 
 Tliere were two questions before the court : First, 
 would injunction lie ? second, was the property ex- 
 empt from the tax.' The court held that injunction 
 would lie on the ground that a court of equity could 
 prevent a cloud on the title to real estate, but the court 
 went further and held that this church projierty was 
 not exempt from this tax for which the city proposed to 
 sell it. The judgment below dissolving the temporary 
 injunction was affirmed. 
 
 The charter of St. Louis provided that the city 
 could levy taxes "on all i)roperty made taxable by law 
 for state purposes" (Laws of Missouri 1850-1, p. 158, 
 sec. 2, art. 3). Revised Statutes of 1845, page 927, sec- 
 tion 2, provides : 
 
 ''Section 2. The following subjects are exempt 
 from taxation: . . . Tenth, churches, chapels, and 
 other ]mblic buildings for religious worship, with their 
 furniture and equipments, and the lands appurtenant 
 thereto, and used therewith, so long as the same shall 
 bo used for that purpose only." 
 
 The special act of 18411, supra, authorizing the 
 sowers in controversy, did not in terms exempt church 
 property. The question was, AVas it exempt from this 
 tax and other taxes by the city charter referred to 
 above, that charter authorizing taxation of all prop- 
 erty "made taxable by law for state purposes?" 
 
 The court below held this church land not exempt 
 from this sewerage tax; the court above affinned the 
 judgment. In rendering the judgment the court define 
 with more or less precision the nature of this local tax : 
 
 "The words of the act imply no such exemption, 
 and the princi]tle on which church ])roperty is exempted 
 from contributing to the general expenses of the gov- 
 ernment, either state or municipal, is not ai'tplicable to 
 a special assessment of this kind. The question has been 
 discussed and settled in other states in cases where the
 
 100 Law of Loc.il Taxation. [Chap. 5 
 
 claim to exemption stood under the hiw on perhaps 
 stronger ground than it does here." 
 
 The same quotations are made here merely to indi- 
 cate that according to constitutional law then in force 
 and the peculiar characteristics of this local tax it was 
 never justified unless there was a benefit equal to or 
 greater than the tax. The statutes, the Constitution and 
 judicial decisions (which latter became a part of the 
 Constitution the same as if copied into it) gave it these 
 characteristics and they had the same force as if cop- 
 ied into the Constitution. ' ' But what is ' The principle 
 on which church property is exempted from contribut- 
 ing to the general expenses of the government either 
 state or municipal?' 
 
 "If an improvement is to be made, the benefit of 
 which is local, it is but just that the property benefited 
 should bear the burden. A^^iile the few ought not to be 
 taxed for the benefit of the whole, the whole ought not 
 to be taxed for the few. A single township in a county 
 ought not to bear the whole county expenses, neither 
 ought the whole county to be taxed for the benefit of a 
 single township; and the same principle requires that 
 taxation for a local object, beneficial only to a portion 
 of a town or city, should be upon that part only. Gen- 
 eral taxation for a mere local purj^ose is unjust ; it bur- 
 dens those not benefited, and benefits those who are ex- 
 empt from the burden. " [24 Mo. 22.] 
 
 "To pay for opening a street in proportion to the 
 benefit to be derived from it, was no burden and there- 
 fore no tax within the meaning of the law." This lo- 
 cal tax always has a benefit with it equal to or greater 
 than the tax. 
 
 In Northern Liberties v. St. John's Church, 13 
 Penn., at 107, referred to above, the court says : 
 
 ''Boroughs and cities are part of the machineiy 
 through whose agency government is conducted. They
 
 Chap. 5] TiiEOHiEs of Taxation. 101 
 
 are established for the purpose of conserving tlie power 
 of society and they are within the control of the gov- 
 ernment which may alter and reform their organiza- 
 tion. Hence, they may and do lay taxes for public pur- 
 poses and the public good. They maintain a })olice and 
 punisli offenders sunnnarily who l)reak the laws of the 
 State in certain cases. This can not be done without 
 the imposition of ])ublic taxes, which they are author- 
 ized to levy and collect. A tax was anciently defined to 
 be a certain aid, subsidy or sui)ply granted by the Com- 
 mons of Great Britain, constituting the king's revenue 
 (4 Inst., 216-233). As the name itself im])orts from its 
 derivation, it means tribute and belonged to the king's 
 treasury. I think that the common mind everv^iere 
 has taken in the understanding that taxes are a public 
 imposition, levied by authority of the government for 
 the purpose of carrying on the government in all its 
 machinery and operations; that they are imposed for 
 a public purpose; whereas, municipal charges are of- 
 ten for the benefit lot-holders on a part of the street and 
 the assessment, as in this instance, induced by the re- 
 quest made known according to their charter, of a ma- 
 jority of the inhabitants. The assessment or charge is 
 the equivalent from the owner for the improvement 
 made to the value of the property. Such assessments 
 are not collectible like public taxes, but generally, as 
 in this instance, a particular mode of recovering the 
 charge is pointed out by the law. It is evident from 
 all the acts of Assembly in relation to this incorporated 
 district, that the Legislature had in view the difference 
 between taxes properly so denominated and charges or 
 assessments for the improvement of particular streets 
 as the advance of population required such improve- 
 ments." 
 
 This exenqition law intends to exempt this church 
 property from taxes that are burdens. This tax is for
 
 102 Law of Local Taxation. [Cliap. 5 
 
 a benefit conferred on the property. This is the judic- 
 ial stamp put on this kind of tax. Other taxes are bur- 
 dens and the church is relieved from them. This tax is 
 a benefit and the church was not to be relieved from it. 
 This decision interprets the legislative mind or inten- 
 tion as to what this local tax is. The property taxed is 
 benefited to an extent equal to or greater than the 
 amount of the tax. 
 
 ''The assessment or charge is the equivalent from 
 the owner for the improvement made to the value of 
 the property." [13 Penn. 107, supra.] 
 
 Lockivood V. St. Louis was decided in 1856, nine- 
 teen years before the adoption of the present Missouri 
 Constitution in 1875. 
 
 Neivhy v. Platte County was decided in 1857, eigh- 
 teen years before our present Missouri Constitution 
 was adopted. The case was tried on an agreed state- 
 ment of facts. The road ran "through the plaintiff's 
 land 122 poles and occupied one and one-half acres of 
 land worth fifteen dollars per acre." The court con- 
 tinuing say, "But it was not admitted that the road 
 was any benefit to the party" (p. 275). "As to the 
 proper rule to compute the benefits [is this a legislative 
 function] in cases of this character, it may not be im- 
 proper, as the case is to be remanded for further pro- 
 ceedings, to remark that the Supreme Court of Massa- 
 chusetts, in the case of Meacham v. The Fitzhugh Rail- 
 road Company, 4 Cushing 392 [should be 291] declared 
 that the benefits to be charged against the adjacent 
 landowners and deducted from the compensation to be 
 paid to them, were the direct and peculiar benefits that 
 would result to them in particular, and not the general 
 benefit that they would derive in common with other 
 landowners from the building of the road; and this 
 seems to be substantially the principle adopted by our 
 IjCgislature as just and equitable in the St. Louis im-
 
 Chap. 5] Theories of Taxation. 103 
 
 provement act, before referred to, and ought perhaps 
 to be followed in the eoniitruction of this provision of 
 the road law." 
 
 Meacham v. Fitzhugh Railroad Company has been 
 quoted from heretofore in this paper. The tax can be 
 equal to (and not beyond or in excess of) the sjjecial 
 and peculiar benefit not enjoyed by the owner of the 
 property taxed in common with other property in the 
 vicinity. In this local taxation, to retain the condemna- 
 tion money or any jiart of it for a general benefit, is in 
 violation of the rule of constitutional law that "Pri- 
 vate ])roperty shall not be taken for public use without 
 just compensation. ' ' 
 
 "If the state government possessed no authority 
 over private property except that of taking it for the 
 public use upon rendering the owner a just compensa- 
 tion, it would seem that under this provision, the own- 
 er would be entitled to the full money value of his prop- 
 erty without any deduction," i. e., a tax cannot be lev- 
 ied. 
 
 Garrett v. St. Louis, 25 Mo. 505, referred to, is a 
 case of local taxation decided in 1857. There was no 
 complaint of any error in the exercise of the power of 
 eminent domain. The error complained of was in the 
 exercise of the taxing power. Not only must there be a 
 benefit in the exercise of this taxing power, but that 
 benefit must be special, peculiar, exceptive. 
 
 In Louisiana £ Frankford Plank Road Company 
 V. Pickett, 25 Mo. 535, the statute was thus (sec. 8 of 
 an act to authorize the formation of associations to con- 
 struct ])lankroads and macadamized roads) : After \)yo- 
 viding that the road directors or authorities shall first 
 endeavor to agi'ee upon the price of the land if they 
 fail to do so then the road authorities go before a jus- 
 tice of the peace, who issues and causes to be served 
 on the landowner a notice to appear before him in ten
 
 104 Law of Local Taxation. [Chap. 5 
 
 days to show cause why commissioners shall not be ap- 
 pointed to fix the damages, and on the return day if the 
 parties still fail to agree, then the justice selects a jury 
 of five disinterested landowners (if the parties them- 
 selves can not agree on the men). This jury shall take 
 an oath and tliey are bound to '* faithfully and mipar- 
 tially assess the damages if any," and it is made their 
 duty to *S'iew the lands upon which damages are 
 claimed, and they shall determine the amount of the 
 same, duly considering the advantacfes of said road to 
 said owner," and shall report to the justice, who enters 
 judgment from which either party may apjDeal, etc. 
 
 Under the above statute, in condemnation proceed- 
 ings involving, however, both the power of eminent 
 domain and the taxing power, the court gave this in- 
 struction (25 Mo. 537) : 
 
 "The juiy^ shall go ujion the land over which the 
 road is proposed to run, and shall assess the damages 
 sustained by said Pickett, taking into consideration the 
 advantages, if any^ which said road may he to said 
 Pickett, and the jury shall make out in w'riting their 
 verdict and all shall sign it, and it shall be sealed and 
 delivered to the clerk by one of the jurors." After re- 
 m^arking that the constitutionality of the law had been 
 decided in Neivby v. Platte County the court says of 
 this instruction: 
 
 "The instruction given by the court was erroneous 
 in not restricting the jury to such direct and peculiar 
 benefits or increase of value as were occasioned to that 
 part of Pickett's land not taken for the road, and di- 
 recting them to discard from their consideration any 
 general benefit or increase of value received by such 
 land in common with other lands in the neighborhood. 
 This has been determined to be the proper construction 
 of this and similar statutes." [25 Mo. 537.] Judge 
 Richardson vigorously dissented on grounds directly
 
 Chap. 5] Theories of Taxation. 105 
 
 opposite to the reasons set out by the court in Newby u. 
 Platte County and Garrett v. St. Louis, and oases cited 
 in tlie opinions in the two cases. 
 
 In the case of the Pacific Railroad v. Chrystal, '2') 
 Mo. 544, the statute was tlius (Session Acts of Missouri 
 1849, p. 219, sec. 9) : Section 9 provides that in cer- 
 tain events not necessary to be here mentioned the 
 judge of the circuit court of the county where the lands 
 are situated "Shall appoint three disinterested citizens 
 of the county to view said lands who shall take into con- 
 sideration the value of the land and the advantages and 
 disadvantages of the road to the same, and shall re- 
 port," etc. Judge Napton, in rendering the oynnion 
 of the court, says (p. 546) : 
 
 "The order of the circuit court to the commission- 
 ers appointed to assess the damages to Chrystal 's land 
 was that said commissioners, in forming their estimate, 
 shall make due allowance or deduction for any advan- 
 tages which the said William Chrystal will derive from 
 the said Pacific railroad, but not allowing him the ben- 
 efit of any rise in land in consequence of the surs^ey. " 
 [Here is the taxing power.] 
 
 The order of the court was not excepted to but the 
 court took the motion to set aside the report of com- 
 missioners as in the nature of a motion in arrest, and 
 accordingly reviewed the action of the coujri below in 
 that regard. The court said : 
 
 "In the case of Newhg v. Platte County (ante. p. 
 258) this court held that 'the benefits to be charged the 
 landowners whose lands are taken for a railroad and 
 deducted from the compensation to be allowed for the 
 value of the land taken and the injuiy resulting to ad- 
 joining land, must be the direct and peculiar benefits 
 which result to them in particular, and not the general 
 benefits they derive in common nith other landoH--ners 
 in the vicinity from the building of the road.' [Here is 
 the taxing power.]
 
 106 Law of Local Taxation. [Chap. 5 
 
 "The value of the land taken means its actual 
 value indejiendent of the location of the road. The dis- 
 advantages spo^veu of by the act are the injuries aris- 
 ing from the taking of only a part of a tract, which, 
 from a variety of causes, may more or less impair the 
 value of the part left, or entirely destroy its value. 
 
 "It is manifest that the order of the court to the 
 commissioners did not conform to these principles. The 
 report should therefore have been set aside and a sec- 
 ond assessment made with j^roper instructions." 
 
 Inhabitants of Palmyra v. Morton, 25 Mo. 593, is 
 a case of local taxation, but even this case proceeds on 
 the theory that these local taxes are founded on local 
 benefits. Says Richardson, Judge (who dissents from 
 the doctrine that the benefits must be special, peculiar, 
 exceptive), p. 596: 
 
 "So, in towns, wells and cisterns are dug and kept 
 in repair at the expense of particular limits; and in 
 cities public parks and wharves are established, streets 
 are opened and paved, sewers are made, water pipes 
 are laid, and the expenses thereof are charged to the 
 property-holders benefited thereby. It is the exercise 
 of the same power that authorizes districts, counties or 
 towns to subscribe for public improvements." 
 
 "The expenses thereof are charged to the parties 
 benefited thereby." The benefit is equal to or less than 
 the cost. Judge Richardson in his dissenting opinion 
 in Louisiana S Frankford Plank Road Co. v. Pickett, 
 25 Mo. 535, at 538-9, admits that this particular kind of 
 tax, this local tax, must be a benefit. He only contends 
 for a general benefit. He denies that it is necessary 
 to have this special, peculiar, exceptive benefit. But 
 these expenses are charged to the parties benefited. 
 Some persons are then benefited. They ought to be 
 charged to an extent equal to the cost if the benefit be 
 so great. The expenses ought to be charged to the
 
 Chap. 5] Theories of Taxation. 107 
 
 "parties benefited." If a ])erson then bo not benefited, 
 he ought not to be charged. He ought not to be charged 
 to an extent in excess of his benefits. He ouglit not to 
 be charged to an extent in excess of the cost. 
 
 The sovereign power ouglit to be so fai- held a 
 trustee for the citizen as not to make a profit from pub- 
 lic work, from him who pays for it. The citizen is help- 
 less. He is not liable on any contract express or im- 
 plied. Under the rule that this tax can not be more 
 than the benefit, the tax is indeed not a burden. Other 
 forms of taxation were indeed burdens and they were 
 limited in the Constitution of 1875. The rule was ex- 
 pressed in two forms: First, under exemption laws, 
 and second, under taxation laws where the tax is held 
 to be "Not a tax on property but a tax on benefits." 
 
 The church trustees were exempt from taxes that 
 were burdens. From taxes that were benefits they 
 were not exempt. For the church trustees to pay for 
 this benefit conferred "Is consistent with science and 
 religion." The law only intends to exem])t the church 
 from a burden. This judicial interpretation of this 
 sewer tax law, this exemption law, becomes a part of it 
 the same as if incorporated into it. It was held to be 
 constitutional and it was a ]iart of the Constitution the 
 same as if copied into it. 
 
 In Egyptian Levee Company v. Hardiu. 27 Mo. 
 495, although "The defense was that the act of the leg- 
 islature was unconstitutional because the land was 
 taxed by the acre and not in proportion to its value" 
 (p. 496), yet the special, peculiar character of a local 
 tax is pointed out. It is founded on l>enefit. It is 
 based on the fact that the impost is no burden, and 
 Northern Liberties v. St. John's Church, 13 Pa, 107, is 
 quoted from and apin'oved (pp, 497-S), andStafe v. New 
 Orleans Nariqatiou Co., 11 j\rart. 309, quoted from and 
 approved, wherein certain charges must be "Paid by
 
 lOS Law of Local Taxation. [Chap. 5 
 
 such individuals only who enjoy the advantages re- 
 sulting from such labor and expense," and a like con- 
 struction is given to an act of Congress requiring lands 
 to be exempted from taxation for a number of years 
 (five) and this act did not exempt lands bordering on 
 the Mississippi river from a levee tax to preserve the 
 lands and benefit them. The tax was not a burden. 
 This tax was further defined in other judicial decisions 
 up to the time of the adoption of the Missouri Constitu- 
 tion of 1875. This is specially noticeable in City of 
 St. Louis to use v. Allen, 53 Mo. 44 (quoted from here- 
 tofore and not now repeated), and McCormack v. 
 PatcJiin, 53 Mo. 33. 
 
 ''The whole theory of local taxation or assess- 
 ments is, that the improvements, for which they are 
 levied, afford a remuneration in the way of benefits. 
 A law which would attempt to make one i^erson or a 
 given number of persons, under the guise of local as- 
 sessments, pay a general revenue for the public at 
 large, would not be an exercise of the taxing power, 
 but an act of confiscation. In effect, it would be trans- 
 ferring the property of one individual to another. 
 These are legal truisms which have long been enter- 
 tained and firmly established" (p. 36). 
 
 These decisions in 53 Mo. were rendered in 1873, 
 just two years before the Constitution of 1875 was 
 framed. These cases were then published and were 
 known to the members of the convention. Washing- 
 ton Adams was a member of the court then. The peo- 
 ple of the State desired him to resign his position on 
 the Supreme Court and to become a member of the con- 
 vention to carry out his ideas of constitutional law as 
 to the safety of private property from being damaged 
 for public use without just compensation. 
 
 Thurston v. St. Joseph, 51 Mo. 510^ was decided in 
 1873. The idea that this local tax is for a benefit con-
 
 Chap. 5] Theories of Taxation. 109 
 
 f erred on the property taxed and in no case can exceed 
 the benefit is illustrated in Farrar et al. v. The City of 
 St. Louis, 80 Mo. 379, et seq. 
 
 Article 10 has been quoted in full on. preceding 
 pages. The case supra is one on local taxation. After 
 quoting sections of article 10, the court, on p. 386, et 
 seq., say : 
 
 "If, as contended for by plaintiff's counsel, the 
 'taxes' and 'taxation' referred to in the above sections, 
 embrace and were intended to embrace, special assess- 
 ments made to i)ay for local improvements, then it 
 would follow that the said charter provisions of the 
 city, as well as ordinance No. 12041, the validity of 
 which is questioned in this suit, would fall because of 
 conflict with the Constitution. But we are of the opin- 
 ion that charges for the cost of a local improvement 
 against the property benefited by the improveirient, al- 
 though an exercise of the taxing power, are not such 
 taxes as are referred to in the various clauses of the 
 Constitution above quoted, and that they are neither 
 embraced, nor intended to be embraced in them. [What 
 are the reasons for omission is in part the i)urpose of 
 this chapter.] Said article 10 of the Constitution 
 is devoted to 'Revenue and taxation,' and the tax- 
 ation there provided for and restricted relates to such 
 taxation as is intended to raise revenue to l^e paid into 
 the respective treasuries of the State, county or munici- 
 pality, and to be disbursed therefrom for state, county 
 or nmnicipal purposes. At the time the Constitution of 
 1875 was being framed, the validity of si>ecial assess- 
 ments for the i)ayment of the cost of local improve- 
 ments had been sustained in numerous rulings of this 
 court, the [principle underlying these adjudications be- 
 ing that the property benefited by a local improvement 
 icas increased in value as much as it is required to pay 
 for the itnprovement. These rulings were made under
 
 110 Law of Local Taxation. [Chap. 5 
 
 the constitutions of 1820 and 1865, both of which con- 
 tained the same provision that is contained in section 
 4 of the present Constitution, viz. : ' That all property 
 subject to taxation, shall be taxed in proportion to its 
 value.' " 
 
 The cases in the Supreme Court were then re- 
 viewed. The first case reviewed is that of Lockwood 
 et al. V. St. Louis, 24 Mo. 20, where the property was 
 taxed for a sewer one-half of one per cent of its value 
 in ]n'ecise accordance with the constitutional provision 
 quoted, "That all property subject to taxation shall be 
 taxed in proportion to its value." The case is referred 
 to as illustrating the difference between a general tax 
 and a local tax. A general tax is a burden, whereas 
 a local tax is a benefit. The cases of Novhy v. Platte 
 County and Garrett v. St. Louis are referred to where- 
 in the doctrine is established, not only that there must 
 be a benefit but that a general benefit will not suffice; 
 the benefit must be special, peculiar, exceptive, not en- 
 joyed by the landowner in common with his neighbors 
 about him. Otherwise this taxation law takes private 
 property for public use without just compensation. 
 Continuing the court says, p. 390: 
 
 '*It was well known to the members of the conven- 
 tion who framed the Constitution of 1875 that accord- 
 ing to the rulings of this court the words 'Taxes' and 
 'Taxation' as used in sections of the constitutions of 
 1820 and 1865, identical with said section 4, did not em- 
 brace special assessments or taxes imposed to pay for 
 local improvements for benefits thereby conferred on 
 the property assessed or taxed; and if they intended 
 to change the rule of interpretation in this respect, and 
 embrace special assessments in the restrictions con- 
 tained in said section 11, apt words expressive of such 
 intention and accomplishing such object would doubt- 
 less have been used. No such words were used, nor are
 
 Cliap. 5J Theories of Taxation. Ill 
 
 they necessarily implied from the expression contained 
 in said section, that 'Said restrictions as to rates shall 
 apply to taxes of every kind and description,' for in 
 the case of Sheehan v. The Good Samaritan Hospital, 
 50 Mo. 155, where by statute, the property of the hos- 
 l)ital was expressly 'Exem})t from taxation of every 
 kind,' it was held that the i)i-operty was liable to a spec- 
 ial assessment against it for the improvement of a 
 street on its front, notwithstanding by statute it was 
 exempt from taxation of 'every kind,' the court hold- 
 ing that the taxation from which it was exempted was 
 for the ordinary taxes for the jiurpose of revenue, and 
 that the tax-bill sued on is not regarded as a tax, but 
 as an assessment for improvements, and is not consid- 
 ered a burden, but as an equivalent or compensation for 
 the enhanced value which the property derives from the 
 improvement." 
 
 Says Judge Adams in rendering the unanimous 
 opinion of the Supreme Court in State ex rel. Chou- 
 teau et al. V. Leffingwell et al., 54 Mo. 458, at 474 (A. D. 
 1873) : *' Local assessments are constitutional only 
 when imposed to pay for local improvements conferr- 
 ing speckd benefits." Hence, there was no necessity 
 to change the Constitution in this respect. 
 
 The local assessment for work conferring no special 
 benefit is unconstitutional (it was in 1873) because it 
 takes private property for public use without just com- 
 pensation. This appears in the unanimous opinion of 
 the court. Judge Adams was a member of the consti- 
 tutional convention; so was Judge Norton who wrote 
 the opinion in Farrar v. St. Louis, quoted from above. 
 Judge Black was a member of that convention. It em- 
 braced the ablest jurists of the State. I forbear to 
 name all of them whose names are attached to the Con- 
 stitution of 1875, in Revised Statutes of ^lissouri of 
 1879, vol. 1, pp. xci, xcii and xciii; Revised Statutes of
 
 112 L-^w OF Local Tax.\tion. [Chap, 5 
 
 Missouri 1889, vol. 1, pp. 112-3-4; Revised Statutes of 
 Missouri 1899, vol. 1, pp. 120-1. 
 
 Article 10 of the Missouri Constitution of 1875 in- 
 troduces a series of reforms in taxation. The state tax 
 is twenty cents on the one hundred dollars valuation. 
 This is one-:&fth of one per cent. There was no limit 
 before, and hence the tax might have been one hundred 
 l)er cent. Is it possible that the convention would limit 
 the state tax to one-fifth of one per cent for all the pur- 
 poses of the state government, and yet in any city, 
 town or village one hundred per cent or five hundred 
 times as much might be levied to build a sidewalk or 
 curb a street or pave it, and that, too, without any ben- 
 efit whatever and against the owner's will? Did the 
 convention consider when they proposed this constitu- 
 tion—did the people of this State when they adopted 
 that constitution consider or sup])Ose that there was 
 no limit to special taxes, or did they both consider that 
 special taxes were already limited by that provision of 
 the state Constitution, that "Private property shall not 
 be taken or applied to public use without just compen- 
 sation" — that local taxes were constitutional only 
 when imposed to pay for public improvements conifer- 
 ring special, peculiar, exceptive benefits? They even 
 changed, in the interest of the property-own.er, this 
 provision by enacting that private property shall nei- 
 ther be taken nor damaged for public use without just 
 compensation. And for either they adopted the rule, 
 "Cash in advance." 
 
 The burdens of taxation are lessened— made uni- 
 form by section 2, article 10. An assessment made for 
 state purposes can not be exceeded by any city, town 
 or village assessment. It may be less; it never can be 
 more. The county tax must not exceed fifty cents on 
 the hundred dollars valuation or one-half of one per 
 cent per annum. The largest municipal tax is one per
 
 Chap. 5] Theories of Taxation. 113 
 
 cent; the smallest is for villages, one-fourth of one per 
 cent. While the rate remains constant, the amount of 
 municipal tax can not be increased by a larger assess- 
 ment. Everj^where is a limitation of the amount of tax. 
 
 Did the convention by proposing this Constitution, 
 did the ])eoi)le of the State of Missouri by ado])ting it, 
 intend that the whole state tax should be only one-fifth 
 of one i)er cent for conducting the state government; 
 the whole county tax for conducting the county govern- 
 ment should be one-half of one per cent, only making 
 a total tax of not to exceed seven-tenths of one per cent 
 for the state and county government and >'et in any 
 city, town or village, one hundred per cent (one hun- 
 dred and forty-three times as much as for both) might 
 be levied for a sidewalk or for paving or for a sewer 
 (perhaps in a cow pasture) when the work adds noth- 
 ing to the value of the land or is in excess of the value 
 of the land ? 
 
 Said one member of this convention in rendering 
 the unanimous opinion of the Supreme Court of Mis- 
 souri in State ex rel. v. Leffingnell, 54 Mo. 457, loc. cit. 
 474 (two years before the convention met): "Local 
 assessments are constitutional only when imposed to 
 pay for local improvements conferring special bene- 
 fits/' 
 
 Why make a change? Up to the time of the adop- 
 tion of the Constitution of 1875 there never had been 
 a decision of any court in the State (of which this writ- 
 er is aware) upholding the constitutional validity of a 
 local tax imposed on local property not benefited. In 
 the earlier cases under the Constitution of 1820 there 
 was absolutely no difference of o]iinion. The minority 
 of the court held that a general benefit was sufficient. 
 But a benefit was necessary. Indeed the tax was char- 
 acterized as "a tax on benefits." The very language 
 implies that there must be "Benefits" to be taxed. A
 
 114 Law of Local Taxation. [Chap. 5 
 
 tax on property implies that there is property to be 
 taxed, the tax law can not create the property nor can 
 it create the benefit. The tax law can not determine 
 that the citizen has property nor can it determine that 
 he has benefits. 
 
 Take the case of Zoeller v. Kellogg, 4 Mo. App. 
 163. The judges there held the tax-bill unconstitu- 
 tional, but the case was subsequently overruled, and I 
 treat the case as holding that the tax-bill was constitu- 
 tionally valid, as the judge who rendered the opinion 
 concurred in overruling it. Let us compare. In that 
 case, according to the finding of the court, the lot was 
 worth, after all the improvement was put in with all the 
 value thereby arlrlorl ^n the land, $1,025. The tax-bills 
 in judgment were $1,688. Here was a tax of one hundred 
 and sixty-three per cent on the benefited land with all 
 accrued benefits added. We are not informed what this 
 $1,025 land was worth before it received this $1,688 
 benefit. If we assume it to have been quadrupled in 
 value, then it must have been worth in round numbers 
 $250; and for this $775 benefit, the owner must have 
 paid $1,688 and costs, or lose his $250 property. The 
 decision as rendered below was reversed, but it ought, 
 according to subsequent decisions, to have sustained 
 the tax-bills. In the Missouri Constitution of 1875 state 
 taxes to carry on the state government were limited to 
 twenty cents on the $100 valuation, or one-fifth of one 
 per cent. The tax on the St. Louis lot was 815 times as 
 much. The Missouri Constitution of 1875 provided 
 that when the taxable property of the State should 
 reach $900,000,000, then the state tax should be fifteen 
 cents on the $100 valuation, or three-twentieths of one 
 per cent. This special tax would have paid all state 
 taxes at this rate for 1,087 years. This special tax is 
 1,087 times as much as it takes now to run the state 
 government. Think of it ! This local tax in 1873 on
 
 (."hap. 5] Theories of Taxation. 115 
 
 this St. Louis lot would (if this judguient had been 
 paid) pay all the state taxes on that lot to su])port the 
 state govenmient for eight hundred and fifteen years 
 and with our larger assessment it would pay all state 
 taxes for 1,087 years. If the assessment had been made 
 for state taxes at forty per cent of the actual value for 
 taxation, then this local tax on this St. Louis property 
 in judgment in 1877 w^ould have paid all state taxes on 
 tliis lot for 2,037 years, and when the state tax was re- 
 duced to fifteen cents on the $100 valuation, would have 
 paid all state taxes for 2,717 years. Think of this, gen- 
 tle reader. This one local tax on this St. Louis lot would 
 have paid all the state tax on that lot from June 12, 
 1877, to June 12, A. D. 4594. It would pay all state 
 taxes back to 100 years before Romulus founded Rome 
 —750 years before the crucifixion of Christ— 700 years 
 before the Augustan Age of Rome. If we estimate the 
 property worth $250 before the improvement, and as- 
 sess it for taxes at forty per cent of its value, then 
 we have $100 valuation for taxes and the state tax will 
 be fifteen cents on the $100 valuation. This local tax 
 of $1,688 would pay all state taxes on this lot eleven 
 thousand two hundred and fifty-three years. That 
 would pay all state taxes back 5,200 years before the 
 time of Adam and Eve in the Garden of Eden. It 
 would pay all state taxes from the decision on June 
 12, 1877, up to June 12, A. D. 13130. 
 
 And if there is any one thing settled in American 
 constitutional law it is this viz. : This local tax in one 
 year that would pay all state taxes for eleven thousand 
 two hundred and fifty-three years ''is not a burden." 
 That one year's state tax is a burden. 
 
 By accident we have this comparison in this re- 
 ported case. Many cases occur where the tax-bill is 
 sufficient in amount to pay the state taxes back to the 
 time of Adam and Eve in the Garden of Eden, and
 
 116 Law of IjOcal Taxation. [Chap. 5 
 
 many are pre-Adamites. The Constitution allowed a 
 debt to be created not exceeding five per cent of the 
 taxable property. At full value this real estate was 
 worth $1,000. Its share of the largest possible debt 
 would be $50. This tax-bill is thirty-four times that 
 amount. If the assessed value were forty per cent of 
 the real value, the tax would be $20 as its share of the 
 largest possible debt to be contracted. This judgment 
 is eighty-four times that amount. The highest school 
 debt allowable is one per cent. This tax-bill judgment 
 will pay school taxes for 422 years. The highest county 
 tax is one-half of one per cent. This tax-bill judgment 
 will pay county taxes for 844 years. The highest city 
 tax allowable is one per cent. This tax-bill will pay 
 city taxes (for general purposes) for 422 years. 
 
 In Zoeller v. Kellogg^ 4 Mo. App. 163, the land 
 was of an actual value of $1,025. The judgment was 
 for $1,688. This was one hundred and sixty-three per 
 cent only. The total assessed value of all the prop- 
 erty of the State now is nine hundred millions of dol- 
 lars. Now, levy a road tax at the same rate on all the 
 property, real, personal and mixed, in the State and 
 you will absorb all the property in the State and be 
 short five hundred and sixty-seven millions of dollars ; 
 i. e., the whole property of the State is absorbed and 
 there is lacking five hundred and sixty-seven millions 
 of dollars to pay the contractor. Now the people of the 
 State lose all they have,, but you must remember that 
 this is no burden; it was not to the St. Louis lot, and 
 the same rate to the whole State would be no burden. 
 Some might object, but they would doubtless be very 
 few and they would be opposed to public improvements 
 any way, but the chief concern of this writer is what 
 is to become of this poor contractor w4io is five hundred 
 and sixty-seven millions short in pay on his job. I am 
 really apprehensive it will break him u]). Like Alex-
 
 Chap. 5] Thkories of Taxation. 117 
 
 ander the Great, he nmst weep because there is nothing 
 more to tax. 
 
 As this writer now views the subject, nothing pos- 
 sible can relieve liim from this disastrous loss except 
 an Act of Congress to apportion this five hundred and 
 sixty-seven millions on the abutting land to the extent 
 of 250 miles in depth in the adjoining states for the ben- 
 efited property ought to pay the cost. (Zoeller v. Kel- 
 logg, ought not to have been overruled.) 
 
 A similar tax on all the states would absorb the 
 whole property of the whole country and fall short 
 about thirty thousand millions. This is four times as 
 much as all the coined money of the world. But this 
 tax is really different from the ordinary tax to sup- 
 port the government, for this particular tax is no bur- 
 den. As a matter of idle curiosity, this winter would 
 like to know what would be a burden. Our tax-bills 
 draw ten ])er cent interest. This ten per cent on this 
 thirty thousand millions is only three thousand mil- 
 lions per year. This looks like a very large sum of 
 money to be in default each year, but still those bene- 
 fited ought to ]iay it. But you must have indelibly 
 fixed in your mind this constitutional truth: this tax is 
 no burden like the state tax of fifteen cents on the hun- 
 dred dollars valuation. A somewhat similar difficulty 
 presented itself ^larch, 1905, to the thirteen freeholders 
 franiing a new charter for Kansas City. 
 
 It is said cases are frequently met with where the 
 corner lot, being only twenty-five feet in width, is not 
 enough in value to ])ay the tax-bill for the improve- 
 ments on the adjoining street. The proposal was to ex- 
 tend the tax-bill lien to the center of the block. The 
 abutting ]U'0])erty is fi-equently not worth enough to 
 pay the tax-bill. This has seriously affected the mar- 
 ket for tax-bills. Before tax-bills can be sold in the 
 market now. the jiroposed purchaser examines the
 
 118 Law of Local Taxation. [Chap. 5 
 
 propertv on which the tax-bill is a lien. If it be vacant 
 property the tax-bills may be rejected in the market. 
 The property may not be worth the tax-bills. The im- 
 proved corners must make up the deficiency for the 
 vacant corners. Take the four corner lots on any street 
 — lots 25 feet by 150 feet. Each lot will have a tax of 
 $875 for paving (150 feet plus 25 feet) ; $175 for side- 
 walk (175 feet at $1); curbing $85; sewer $50; trees 
 $15; total $1200— $48 per front foot, or $8 per front 
 foot the short way (25 feet deep). This is thirty-two 
 cents per square foot or $7.68 for our graves, four feet 
 by six, into which we are forced by this tax which is 
 not a burden. Comer lots can not be sold at that price. 
 This allows nothing for the original lot. If the original 
 lot was worth $48 i^er foot, then here is a tax of one 
 hundred per cent, making the value of the lot $96 per 
 front foot. But this tax is no burden. If the lot was 
 worth before the improvement $24 per front foot, then 
 here is a tax of two hundred per cent, and the lot is 
 worth $72 per front foot. If the lot is worth (unim- 
 proved I mean) $12 per front foot, then the tax is four 
 hundred per cent and the lot must sell for $60 per front 
 foot. If the lot is worth $2 per front foot, then the tax 
 is twenty-four hundred per cent and the lot is worth $50 
 per front foot. 
 
 This tax of twenty-four hundred per cent is no bur- 
 den. The Constitution prohibited the creation of a 
 debt exceeding five per cent for ordinary public expen- 
 ditures. More than five per cent is a burden for gen- 
 eral taxes but twenty-four hundred per cent for a street 
 improvement is not a burden. The cost of the improve- 
 ment was $1,200. If we count the lot then worth $600, 
 then the contractor loses $600 by taking a six hundred 
 dollar lot in payment of a $1,200 tax-bill. The lot then 
 was originally worth in cool cash $600 below zero. That 
 is, this lotowner must find some one and then make a
 
 Chap. 5j Theories of Taxation. 119 
 
 deed of this lot to him and give him six Imndred dol- 
 lars in cash, and then that grantee of the lot, holding 
 the cash and lot, is worth exactly zero. "Gujus est so- 
 lum ejus est usque ad caelum et ad orcum." It cer- 
 tainly nmst be admitted that some of our real estate is 
 high in the air, but the most sincere advocate for public 
 improvements will readily admit that, owing to exces- 
 cive taxes, all our real estate has gone ''ad orcum" 
 (to hell) at least in price. ''Silks and satins have put 
 out the kitchen fire." Here is reckless extravagance 
 and consec[uent ruin. 
 
 The freeholders proposed for the new charter of 
 Kansas City that the corner lot should be relieved of 
 a portion of this burden. They proposed to make the 
 lien (on the lot 25 feet wide) less to such an extent that 
 the tax-bill should not exceed one hundred per cent of 
 the lot including the improved value. It was proposed 
 to extend the lien to the middle of the block because the 
 comer lot is not worth enough to pay the tax-bill. Those 
 keeping up with the market on tax-bills have found 
 many tax-bills that exceed in amount the real value of 
 the land on which they are liens. These tax-bills must 
 be made good in the market. Hence, the proposal to 
 lighten the burden on the corner and increase the bur- 
 den on the inside lot. The result is liable to be that the 
 tax-bill on the inside lot will be greater than its value, 
 so that owmers will lose both inside and corner lots. 
 The thoughtful owners of inside lots hope (not in vain) 
 to hold their inside lots and let the corners go or aban- 
 don the lots to the holders of the tax-bills. If the char- 
 ter can authorize a lien one foot beyond abutting prop- 
 erty, it can for a mile or even to the Kaw river on the 
 west or the Mississippi on the east and to the Rocky 
 mountains on the west. Rather than allow the contrac- 
 tor to lose money, it would be better to extend it from 
 ocean to ocean and from the arctic circle to the equator.
 
 120 ' Law of Local Taxation. [Chap. 5 
 
 The Mississippi river and the Rocky mountains ought 
 not to ])e ''the ultima thule" of this lien. Such narrow 
 confines for this lien is frequently productive of great 
 injustice. Mrs. Smith's lot (128 Mo. 23, et seq.) was 
 damaged $2,750. You can not find a single lot in Port- 
 land, Oregon, or in San Francisco, California, or any- 
 where on the Pacific Coast, that was damaged $2,750, 
 but they issued a tax-bill against Mrs. Smith's lot for 
 doing this damage and she had to pay it (67 Mo. App. 
 205, et seq.). These statements may seem to be exag- 
 gerations, but a brief glance at the facts admitted on all 
 sides will convince any one that the statements are cor- 
 rect. It is true Mrs. Smith secured judgment for 
 $2,750, and the judgment was paid; her personal at- 
 tendance in court was necessary. Mrs. Smith had to 
 employ and pay a lawyer. She got nothing for that. 
 She had to follow the case to the Supreme Court of 
 Missouri. While the lotholder in Portland or San 
 Francisco was not benefited in fact, he certainly was 
 not damaged to the extent of $2,750. He had none of 
 the annoyances of a troublesome, vexatious lawsuit to 
 recover $2,750 damages caused by a $300 benefit. 
 
 The Tea tax of the Revolution did not damage a 
 single citizen of all the Colony of Massachusetts Bay to 
 half this extent. 
 
 The Constitution of Missouri of 1875, article 10, 
 made important changes. It made no change except 
 where the necessity was apparent and urgent. The 
 State had loaned its credit to various railway enter- 
 prises. The adventures had been disastrous financially, 
 and in 1865, under article 11, section 13, the Legislature 
 could no longer lend its aid to any corporation or per- 
 sons. The restriction was re-enacted in 1875. Coun- 
 ties, cities, towns, villages, townships and even unor- 
 ganized strips of land, took stock in railways and other- 
 wise aided railways in developing the country. This
 
 Chap. 5 J Thkukies of Taxation. 121 
 
 proved disastrous and the power was modified in 1865 
 in the Constitution so as to re([uire a vote of tile tax- 
 payers or voters at an election for that purpose. These 
 restrictions proved to be of no avail and in the Consti- 
 tution of 1875 all i)ower was taken away from the Leg- 
 islature. 
 
 The Constitution of New York contained this })ro- 
 vision (People v. Mayor of Brooklyn, 4 New York 419, 
 55 Am. Dee. 266, at 284) : "It shall be the duty of the 
 Legislature to provide for the organization of cities 
 and incorporated villages, and to restrict their pow- 
 ers of taxation, assessment, borrowing money, con- 
 tracting debts and loaning their credit, so as to prevent 
 abuses in assessments and in contracting debt by such 
 municipal corporations." 
 
 ' ' The direction given to restrict the power of cities 
 and villages to make assessments, presupposes and ad- 
 mits the existence of a power to be restricted." [S. C. 
 in 55 Am. Dec, p. 284.] 
 
 And the provisions of the Constitution of New 
 Y^ork, first, that private property shall not be taken for 
 public use without just compensation, and second, that 
 no person shall be deprived of life, liberty or property 
 without due process of law, are not intended to nullify 
 this special provision on this special subject in the 
 same Constitution. Say the framers of the Constitu- 
 tion of New York: "We will not undertake— we do 
 not undertake to restrict you in taxation, assessments, 
 borrowing money, contracting debts and loaning your 
 credit or that of cities, towns and villages. Y'our Leg- 
 islature must make these restrictions." 
 
 The Constitution does not act on the subject. It 
 authorizes the Legislature to act. It is said that there 
 are no restraints on local taxation in article 10 of the 
 Constitution. This is true. The members of the con- 
 vention knew of local taxation and made no effort to re-
 
 122 Law of Local Taxation. [Chap. 5 
 
 strict it or prohibit it. It always was limited to the 
 special benefit. The old constitution contained the 
 provision that "Private property shall not be taken or 
 applied to public use without just compensation." 
 
 "Local assessments are constitutional only when 
 imposed to pay for local improvements conferring 
 special benefits" (Oct. A. D. 1873, 51- Mo. at 474). Wliy 
 make a change ? 
 
 Locust street in Kansas City was graded and Mrs. 
 Smith's adjoining lot was damaged thereby to the ex- 
 tent of $2,750: There was a local assessment of $300 
 to pay for doing this damage assessed against the dam- 
 aged property. If this assessment had been before the 
 Supreme Court of Missouri in 1872 or 1873 or 1874 
 would it have been held constitutional by the court? 
 Was a local tax then constitutional which created a 
 damage ten times as great in amount as the tax! 
 
 "There is a broad distinction, and one of univer- 
 sal recognition, between the foundations upon which is 
 based the right of general taxation for governmental 
 purposes and that which supports the rights of local as- 
 sessments. The authority to impose either is referred 
 to the taxing power ; but the object of one, as giving 
 the authority, widely differs from that of the other. 
 
 "All taxation is supposed to be for the benefit of 
 the person taxed. That for raising a general revenue 
 is imposed primarily for his protection as a member of 
 society, both in his person and property in general, and 
 hence the amount assessed is against him, to be 
 charged upon his property, and may be collected of him 
 personally. But on the other hand, local taxes for local 
 improvements are merely assessments upon the prop- 
 erty benefited by such improvements, and to pay for 
 the benefits which they are supposed to confer ; the lots 
 are increased in value, or better adapted to the uses of 
 town lots, by the improvement. Upon no other ground
 
 Chap. 5] Theories of Taxation. 123 
 
 uill such pattud taxation staiifl. Other property held 
 by tlie owner is affected l)y this iinprovemeiit i)recisely 
 and only as is the property of all other members of the 
 community, and there is no reason why it should te 
 made to contribute, that does not equally apply to that 
 of all others. 
 
 "The sole object, then, of a local tax being to Ijene- 
 fit local property, it should be a charge upon that prop- 
 erty only, and not a general one upon the owner. The 
 latter, indeed, is not what is understood by a local or 
 special assessment but the very term would confine it 
 to the property in the locality; if the owner be person- 
 ally liable, it is not only a local assessment, but also a 
 general one as against the owner. The reasonableness 
 of this restriction will appear when we reflect that 
 there is no call for a general execution until the proi> 
 erty charged is exhausted. If that is all sold to pay the 
 assessment, leaving a balance to be collected otherwise, 
 we should have the legal anomaly— the monstrous in- 
 justice— of not only absorbing the property supposed 
 to be benefited and rendered more valuable by the im- 
 provement, but also of entailing on the owner the loss 
 of his other property" (50 Mo. 528-9). 
 
 This was the language of the Supreme Court of 
 Missouri in 1872, just three years before the conven- 
 tion met to frame the Constitution of 1875. Wash 
 Adams was then a member of the Supreme Court, and 
 he was a member of the Constitutional Convention, 
 having resigned his place on the Supreme Bench to l^e- 
 come a member of the Constitutional Convention. 
 
 Under the Constitution of 1820 and of 1865, local 
 taxation in Missouri could only exist where there were 
 local benefits. Not only must there be benefits but 
 those benefits must be special, peculiar, not enjoyed in 
 common with other property in the vicinity. Taxation 
 of this character amounts to ** Taking private property
 
 124 Law of Local. Taxation. [Chap. 5 
 
 for public use without 'just compensation,' " in every 
 case where this special benefit did not exist. Judge 
 Richardson's idea that a general benefit was sufficient 
 was overruled 'Uipon no other ground {than benefits) 
 will such partial taxatiow for a moment stand." At 
 the time the city of Weston, under authority of her 
 charter, levied a tax of one-half of one per cent on the 
 lands of Mr. Wells, situated without the city limits and 
 within one-half mile of the city limits, the Legislature 
 had no authority to tax. The Missouri Constitution 
 did not direct the Legislature to limit their power to 
 tax lands without the city limits and within one-half 
 mile of the city limits. The power was prohibited. 
 
 In Missouri this power was prohibited to all the 
 departments of the state government. In place of be- 
 ing prohibited to the New York Legislature, the power 
 was given in express words. 
 
 In the matter of the license tax on wagons hauling 
 goods or iDroperty from points without to points within 
 the city, the Constitution of Missouri did not direct the 
 Legislature to restrict the powers of the city of St. 
 Charles in levying such taxes. In place of delegating 
 such power by a clause therein giving the Legislature 
 full power, the Constitution left it where it was here, 
 and where it would have been in New York, but for the 
 peculiar ])hraseology of the New York Constitution. It 
 was taking private property for public use without just 
 compensation, and that clause was not modified in Mis- 
 souri as in New York. The people of any State may 
 adopt a constitution without a clause prohibiting the 
 State or any one acting for it or by authority granted 
 by it from taking private property for public use with- 
 out just compensation. The constitution of any State 
 may provide that the Legislature of the State in the 
 way of a local tax may take private property for pub- 
 lic use without just compensation, but shall not do so
 
 Chap. 5] Theories of Taxation. 125 
 
 in any other case. They may in tenns give their legis- 
 latures the power to take private {iroperty for public 
 use in all cases or in a limited number or character of 
 cases without just compensation or any compensation. 
 
 The construction ])ut on the state constitution by 
 the highest judicial tribunal of the State becomes a 
 part of that constitution the same as if copied into it. 
 The Supreme Court of Missouri for a number of years 
 put a construction on the clause of the state constitu- 
 tion providing that "Private property shall not be 
 taken for public use without just compensation." That 
 construction was that a local tax i)ut on abutting prop- 
 erty to |)ay for improvements in front of or adjoining 
 it where tlie property does not receive a special, pecul- 
 iar, exceptive benefit, a benefit not enjoyed by other 
 ])roperty in the neighborhood, is a taking of private 
 ])roperty for public use without just compensation, con- 
 trary to the Constitution of the State. 
 
 The new Constitution provided that not only 
 should private property not be taken for public use 
 without just compensation, but that it should not be 
 damaged, thus adding an additional security for pri- 
 vate property. 
 
 A moment's reflection will convince even the most 
 skeptical that if local taxes can l3e levied without spec- 
 ial benefits equal to or greater than the tax, then the 
 express rule of constitutional law that private property 
 shall not be taken for public use without just compensa- 
 tion is abolished; for in every case this "just compen- 
 sation" after having been ascertained in a proper ju- 
 dicial proceeding may be taxed one hundred per cent 
 to pay the owner, and there is no difference in retain- 
 ing the whole of this "just compensation" on the one 
 hand, and selling adjoining land to pay it on the other 
 hand. If the land be not benefited, the owtier loses his 
 land and gets nothing for it, or loses his monev and
 
 126 Law of Local Taxation. [Cliap. 5 
 
 gets nothing for it. The purchaser gets the land; the 
 foraier owner can not get it from him ; the jmblic gets 
 the money and the landowner can not get it from the 
 public. This local tax, in order to be enforced, must be 
 a beneiit to the property taxed; or, more properly 
 speaking, the work for which the special tax is levied 
 must be a benefit to the property taxed and that bene- 
 fit must be special, peculiar, exceptive— a general bene- 
 fit is not sufficient; any other other local tax was un- 
 constitutional in taking private property for public use 
 without "just compensation." 
 
 These judicial decisions became a part of the Con- 
 stitution, and the Constitutional Convention of 1875 in 
 proposing this constitution, and the people of the State 
 of Missouri in adopting it with the same language as 
 contained in the previous constitutions, adopted it with 
 the same construction put on it by the courts. 
 
 This is the rule applicable to statutes adopted 
 from other states or countries by this State, or contin- 
 ued or re-enacted in this State. The rule should hold 
 good for the different sections and clauses in the state 
 Constitution. 
 
 Again, what is expressed in a state constitution (e. 
 g., "private property shall not be taken or damaged for 
 public use without just compensation) ought to control 
 that which is implied (the unlimited power to tax for 
 doing an act which the Constitution prohibits). 
 
 "The rule of constitutional law being that private 
 property can not be taken for ]mblic use by the author- 
 ity of the Legislature without a just compensation, it 
 follows that what is to be considered as com'pensation 
 within the meaning of this clause is a question of law 
 for the courts and not a matter for the Legislature ; 
 and under such a constitution as we have supposed, 
 with, no other power over private property than that of 
 taking it for the public use upon making the owner a
 
 Chap. 5] Theories of Taxation. 127 
 
 just compensation, it would be quite beyond the scoyxi 
 of the legislative authoi-ity to declare that the benefit 
 derived by the landowner from the road is the just 
 compensation secured by the Constitution." [Neivby 
 V. Platte Coifiiti/, 25 Mo. 258, at 263, near the bottom 
 (A. D. 1857).] 
 
 The case of the North Missouri Railroad Company 
 V. Lackland, 25 Mo. 515, et seq., holds likewise that the 
 proceeding in condemnation cases is a judicial proceed- 
 ing. The section of the Constitution demands a judic- 
 ial proceeding, for this just comi)ensation must be as- 
 certained by a jury or board of commissioners. A jury 
 is peculiar to a court of law in judicial proceedings. A 
 ]uTY is wholly unknown in legislative proceedings. In 
 this case the railroad company filed its suit to condemn 
 a house and lot in St. Charles, Missouri, for a part of 
 its right of way. The commissioners were appointed 
 and on viewing the premises they assessed the just 
 compensation at $-l-,200. They filed their report on 
 September 24, 1855. The railroad filed no exceptions. 
 At the next term the railroad comjiany asked that the 
 case be dismissed, which was done. Defendant at the 
 same term moved the court to set aside the dismissal 
 and the motion was sustained. Plaintiff moved for 
 judgment on the report and the motion was sustained 
 and judgment entered accordingly and the railroad 
 company appealed. Would an appeal lie f The question 
 was whether this was a judicial proceeding. Did the 
 court act as a court! The Supreme Court, at page 526, 
 say: 
 
 *'That there may be cases where special and limit- 
 ed authority is delegated to a court, not because it is a 
 couH. but from some idea of convenience or propriety 
 and the decision of the court be made final, is not ques- 
 tioned. Tt may, however, admit of a doubt whether the 
 Legislature could so devise a proceeding designed to
 
 128 Law or Local Taxation. [Chap. 5 
 
 effect the transfer of private property to the public, so 
 as to deprive the courts of the power of determining 
 whether the constitutional restrictions upon this subject 
 had been honestly complied with. However this may 
 be, the question here is, does the court act in its judic- 
 ial cajDacity, and can it exercise, in its control over the 
 subject confided to it by the charter, the general powers 
 and jurisdiction of a court, or is the court, quo ad hoc, 
 a mere commissioner, a sjDecial tribunal selected for a 
 special purpose and functus officio when the special 
 powers confided to it by statute have been exhausted. ' ' 
 After some observations as to the statutes the court 
 say, p. 527 : 
 
 "There are some provisions in this section which 
 undoubtedly might be construed to limit the power of 
 the judge, as a mere commissioner, to the specific acts 
 delegated ; but in the main the general scope of the sec- 
 tion looks to the action of the court in its judicial ca- 
 pacity, and gives the court authority, not only to pro- 
 nounce a judgment which will pass a title to the land to 
 the company and a right to the damages to the land- 
 owner, but ' To make all orders and take any steps ' 
 which in the opinion of the court will best promote the 
 ends of justice. Although the act is carelessly drawn, 
 and framed in a mode to justify doubts as to its tnie 
 intent, we will not presume, notwithstanding the ab- 
 sence of any special provisions for an appeal, that it 
 was the intention of the Legislature to deprive the par- 
 ties interested of this right ; especially as the provisions 
 of the general law, both of 1849 and 1815, seem large 
 enough, without any strained construction, to embrace 
 the case. We are the more inclined to this opinion, be- 
 cause an appeal is the most convenient and least ex- 
 pensive mode in which the supei'vising jurisdiction of 
 this court can Ix; exercised, and because it may be 
 safely said that it is at least doubtful whether that jur-
 
 Chap. 5] Theories of Taxation. 129 
 
 isdiction could bo entirely cut off if the Legislature had 
 so intended. Could the Legrislature ])rovide an illusory 
 compensation for i)rivate i)roperty taken for public use, 
 totally at variance with the true spirit of the Constitu- 
 tion, and by placing its enforcement under the control 
 of a selected tribunal and declaring the decisions of 
 that tribunal final, thus place the subject beyond the 
 reach of the courts f ' ' 
 
 The legislative department of every city, town and 
 village is just such a tribunal now. It would seem that 
 the question what is "just compensation" for prop- 
 erty taken for public use is a judicial question and if a 
 l)roperty-owiier may be i)aid in benefits as well as in 
 cash — if "just compensation" may be made in bene- 
 fits as well as cash— then what is a benefit and how 
 much, are judicial questions for the courts. 
 
 "But it was not admitted that the road was any 
 benefit to the party, and the court, we think, could not 
 infer this as a matter of law from the agreed facts and 
 pronounce against allowing the plaintiff any compensa- 
 tion for the property of which he was deprived. ' ' 
 [Neicbij v. Platte County, 25 Mo. 258, at 275.] 
 
 Continuing in the same case the court say : 
 
 "As to the proper rule by which to compute the 
 benefits in cases of this character, it may not be ini- 
 jn-oper, as the case is to be remanded for further pro- 
 ceedings, to remark," etc., etc., about the rule in ^las- 
 sachusetts that special, ]^eculiar, exceptive benefits 
 alone can be considered. Here the court computes 
 benefits and ascertains and determines the fact and 
 amount of benefits. 
 
 The court can not do this if tlie question be prop- 
 erly a legislative question. The courts have no legisla- 
 tive powers. The Legislature has no judicial powers. 
 This is American constitutional law. 
 
 9
 
 130 Law of Local Taxation. [Chap. 5 
 
 '^The council does not nor can it assess damages or 
 benefits." [Baird v. Kansas City, 98 Mo. 215, 1. c. 221 
 (A. D. 1889).]
 
 CHAPTP]R 6. 
 
 POWER OF TAXA'nON A PART OF RO\'T.REIGNTY, 
 
 We have seen in the preceding chapters that 
 benefit is the foundation of the ]iower of local taxation. 
 Without such benefit local taxation is confiscation. We 
 have seen that the benefit nmst l)e s])ecial, peculiar, ex- 
 ceptive, not enjoyed in connnon with the owners of 
 property in the neighborhood or viciniiy. We have 
 seen that a tax law which allows general advantages to 
 be set off against "the just compensation" for land 
 taken for i)ublic use, is an infringement of the rule of 
 constitutional law which provides that ** Private prop- 
 ert^^ shall not be taken for public use without just com- 
 pensation." We have seen that any tax law whicb. in 
 place of deducting a sum; of money from this just com- 
 pensation, places it as a charge or lien on adjoining* 
 land when that land does not receive this special, i)ecul- 
 iar, exceptive benefit, is likewise an infringement of the 
 same rule of constitutional law. We have seen that in 
 the early establishment of this rule of constitutional 
 law, its op])onents admitted that a l)enefit was neces- 
 san- and without a l)enefit there could l>e no tax. The 
 only point of difference was that a general benefit was 
 thought to be sufficient, and this was overruled. 
 
 We have seen (25 Mo. 258, at 263) that 'Mf the 
 state government ])ossessed no authority over pnvate 
 property except that of taking it for public use, upon 
 rendei'ing the owner a just compensation, it would seem 
 that, under this ]irovision, the owner would Ix^ entitled 
 to the full money value of liis ))roperty without any de- 
 duction." We have seen that deducting any ]X)rtion of 
 this just compensation, or placing it as a charge or lien 
 
 (131)
 
 132 Law of Loc.aj. Taxation. [Chap. 6 
 
 on adjoining land, is an exercise of the taxing power in 
 each case (25 ]\[o. 505, at 514). We have seen under 
 the principles anounced in Zoeller v. Kellogg, 4 Mo. 
 App. 163, before it was overruled, that under local 
 taxation private property can no more be taken for 
 public use without just coin]iensation than in the exer- 
 cise of any other governmental power. The restrictions 
 for the security of private property applied to all 
 branches of the government, legislative, executive and 
 judicial. We come now to the other theory of taxa- 
 tion, and it has very weighty reasons in its support. 
 
 The power of taxation exists in the State without 
 being conferred by the people of the State or by the 
 Constitution. The power is a part of sovereignty ; it is 
 inseparable from it. Let us return to a period prior to 
 1875, in the constitutional history of Missouri. We had 
 then a constitutional provision that all property sub- 
 ject to taxation shall be taxed in proportion to its 
 value. There was no other restraint in terms in the 
 Constitution. Hence, it is said the Legislature may tax 
 one hundred per cent. The constitutional requirement 
 that all property subject to taxation shall be taxed in 
 l^roportion to its value is complied with if a tax of one 
 hundred per cent is levied, and the tax is valid if it is 
 not in contravention of some other provision of the 
 Constitution. The city of Weston levied a tax of one- 
 half of one per cent on all laud without the city limits 
 and within a half mile thereof. This was a general tax. 
 This was in form authorized by the charter of Weston. 
 It was not invalid; it was not claimed to be invalid by 
 reason of coming in conflict with the only express limi- 
 tation in the Constitution on the subject of taxation; 
 the property if validly taxed at all was taxed accord- 
 ing to value in precise compliance with this express 
 limitation on the taxing ]:)Ower, and yet the tax was in- 
 valid by reason of the fact that the statute authorizing
 
 Chap. G] Power of Taxation. 133 
 
 it was in conflict with an implied provision of the Con- 
 stitution that ])rivate pr()})erty cannot be taken for i)ri- 
 vate use. The statute took Wells' private property and 
 gave it to the peoi)le living in Weston for their private 
 use. The fact that Wells' land was enhanced in value 
 by reason of its ])roxin)ity to Weston, by reason of the 
 fact that a market was brought to his door, was not 
 considered by the court. The benefit was of no more 
 force than if a mill had been erected by Mr. Wells' 
 neighbors (many or few). Mr. Wells' land could not 
 for that reason be taken from him in w^hole or in part, 
 as suggested by Judge Tucker in James River and 
 Kanaicha Company v. Turner, 9 Leigh 313. 
 
 Mr. Wells' land cannot be taken; he cannot be tax- 
 ed "For having a market and other conveniences 
 brought to his door" (25 Mo. 539, Richardson, Judge, 
 dissenting opinion). 
 
 It seems Mr. Wells was "entitled to gratuitously 
 receive such advantages." It was "well settled that 
 the exercise of the power to assess and collect the pub- 
 lic burdens should not be purely arbitrary and unregu- 
 lated." The Constitution of Missouri as then inter- 
 preted, regulated the Weston tax by holding it void 
 and prohibited. If the Constitution did not "regu- 
 late" this tax, what did? 
 
 The power to tax is the powder to destroy. If the 
 Legislature thus has the power to destroy by taxation 
 and are proceeding to destroy by taxation, how are the 
 courts to regulate that legislative action? If the Legis- 
 lature enact a law^ prohibited by the Constitution then 
 that law is invalid. 
 
 "The power of taxation is inferred from the gen- 
 eral grant of legislative authority. But, like all gen- 
 eral grants, it must yield whenever found in couiiict 
 with any special restriction. The restriction requiring 
 just compensation when one's property is taken for
 
 134 Law of Local Taxation. [Chap. 6 
 
 public purposes, is usually applicable in i)i'actice to the 
 power of eminent domain. If, however, in a peculiar 
 state of facts, it shall be found directly hostile to a cer- 
 tain exercise of the taxing power, or of any otJier 
 power, the restriction will be supreme, and the power 
 must be so far surrendered." [Zoeller v. Kellogg, 4 
 Mo. App. 163, at 167.] 
 
 The tax-bills sued on accrued in August, 1873, two 
 years before the Constitution of 1875 was adopted. 
 While the decision was not rendered till 1877, it ought 
 to be classed with those rendered by the Supreme Court 
 prior to 1875, and the substance of this decision must 
 have been in the mind of the members of the Constitu- 
 tional Convention when they proposed this Constitu- 
 tion of 1875, and in the minds of the people of this State 
 when they adopted it. The opposite of this theory un- 
 der consideration virtually affirms that in the matter of 
 local taxation the legislative power is not governed by 
 the Constitution. The Constitution of New York dif- 
 fers from that of Missouri. The Constitution of New 
 York, by a special clause therein, delegates this whole 
 matter to the Legislature. Of course this part of the 
 Constitution of New York is constitutional according 
 to the Constitution of New York. 
 
 The rule of constitutional law is very general. 
 "Private property shall not be taken for public use 
 without just compensation." Neither the legislative, 
 judicial or executive departments of government nor 
 all combined, either directly or indirectly, can take pri- 
 vate property for public use without just compensation 
 in any case. There are no exceptions to this constitu- 
 tional restriction. 
 
 ''Local assessments are constitutional only when 
 imposed to pay for local improvements conferring 
 special benefits." [State ex rel. v. Leffingwell, 54 Mo. 
 458, at 474.] The local assessment may be according
 
 Cliap. OJ Power of Taxati6n. 135 
 
 to value or by the front foot or by the square foot or 
 according to advantage or benefit; in all cases the local 
 assessment is unconstitutional unless special benefits 
 exist as defined in the decisions of the courts. Local tax- 
 ation by the acre or according to frontage or l)y the 
 square foot or according to benefit, is no violation of 
 the rule of constitutional hnv that "All property sub- 
 ject to taxation shall \ye taxed in projwrtion to its 
 value." 
 
 Local taxation by the acre or according to frontage 
 or by the square foot or according to value or accord- 
 ing to benefit, if there be in any of the methods of local 
 taxation a lack of this ))eculiar, exceptive benefit, is a 
 violation of that rule of constitutional law that "Pri- 
 vate property shall not be taken for public use without 
 just compensation." It is the fact of taking private 
 property for public use without just compensation 
 which is i)roliil)ited and not the method. The method 
 is wholly immaterial. Local taxation is unconstitu- 
 tional unless there is this peculiar exceptive benefit. 
 
 "The constitutional validity of a law is to be tested 
 not by what has been done under it, but by what by its 
 authority may be done." [Stewart v. Palmer, 74 N. Y. 
 183, at 188.] That this is the rule (or rather was the 
 rule) in Missouri appears from the opinion of the 
 court in City of St. Louis to use v. Allen, in 53 Mo. 44, 
 at 55, where the court in rendering the opinion say : 
 
 "The idea that a city could improve a street, and 
 assess the property benefited thereby, and sell the en- 
 tire property, and then go on the owner of the property 
 who may reside out of the city, and sell his property 
 there to ])ay the ]>alance of the assessment, and this all 
 in consideration of the benefit conferred on his proper- 
 ty, which was already sold, would seem at least in its re- 
 sults like taking the i)i-oi)erty of the owner and con- 
 verting it to public use without any just compensation.
 
 136 Law of Local Taxation. [Chap. 6 
 
 I do not believe that by this indirection you can do that 
 which is forbidden by the Constitution if directly done. 
 If a personal judgment can be rendered in such case 
 all this may happen. It is true it is not likely to happen, 
 but the fact that it may possibly happen is enough to 
 defeat the law." 
 
 "If we construe the statute in reference to these 
 assessments to authorize a personal judgment, by 
 which such results might follow, it would make the 
 statute unconstitutional and void," because it might 
 possibly happen that outside property would be sold ; it 
 need not actually be sold. In the opinion of the court 
 it was then too late to apply this rule to local taxation 
 by the front foot. It might possibly happen that abut- 
 ting property was not benefited and hence the rule of 
 constitutional law would render the statute void. 
 
 "If the power of municipal corporations to make 
 these local improvements and make special assessments 
 ag-ainst the adjoining property for the cost thereof, in 
 proportion to the front foot or otherwise was a new 
 question in this State, it might be difficult to find any 
 sufficient warrant in the Constitution to justify such 
 assessments or taxation, but this method of taxation 
 has been recognized and acted on too long to now be 
 questioned, but it is certainly the duty of the courts to 
 see that its exercise is kept within proper limit," i. e., 
 the limit of special, peculiar, exceptive benefit. 
 
 What is this "proper limit" within which the 
 courts are to confine this power of local taxation? If it 
 is not the limit fixed b)^ the Constitution, what is it! 
 There is a power somewhere that limits this power to 
 tax. The statute fixes no limit; the Constitution does 
 and the statute is void if it exceeds this limit of benefit. 
 
 If the abutting property be benefited to an amount 
 equal to ten times or one hundred times the cost, still 
 this local tax law is void— unconstitutional — on the
 
 Chap. 6] Power of Taxation. 137 
 
 ground of taking private property for public use witli- 
 out just compensation if it autliorizes a i)ersonal jud?:- 
 ment against the owner because it may possibly hap- 
 ])en that other distant property not benefited may be 
 sold. 
 
 While Garrett v. St. Louis and Neirby v. Plattf^. 
 County established the rule of constitutional law that 
 to ^-ithhold any portion of the just compensation on ac- 
 count of benefits to adjoining property, when the bene- 
 fits are not special, peculiar, and exceptive, is a taking 
 of private ]iro])erty for public use without just compen- 
 sation, the statutes were not construed according to the 
 rule laid down in the case of Stenart v. Palmer, 74 X. 
 Y. 183, at 188. 
 
 The statutes construed merely used the term "ad- 
 vantage" or *' benefit." The court added the proviso 
 that the benefits must be special, peculiar, exceptive in 
 order to avoid conflicts with the constitutional rule pro- 
 viding that "private property shall not be taken for 
 })ublic use without just compensation." **It is evident 
 that the advantages or benefits spoken of must have 
 some limits" (25 Mo. 512). And the court in requiring 
 this exceptive benefit, proceeds to put a limit in the law 
 not enacted by the Legislature, to render the law con- 
 stitutional. 
 
 The test of the constitutional validity of a law is 
 discussed in City of St. Louis to use of Seihert v. Al- 
 len, in 53 Mo. 44 (1873). It is not necessary that the 
 ill consequences appear in the particular case. The l>ad 
 result may not be present. **It is true it is not likely 
 to happen, but the fact that it may possiJ)ly happen is 
 enough to condemn the laic." [Id., page 55.] 
 
 "The constitutional validity of a law is to be test- 
 ed not by what has been done under it, but by what by 
 its authority may l)e done/' say the Supreme Couii of 
 New York in Stewart v. Palmer, 74 N. Y. ISS. at 188, 
 quoted supra.
 
 138 Law of Local Taxation. [Chap. 6 
 
 ' ' This test is accurate, ' ' say the Supreme Court of 
 the United States in 1893, in Montana Company v. St. 
 Louis Comixiny, 152 U. S. 160-1, at 170, "provided of 
 course it is limited to what may rightfully be done and 
 does not extend to that which is wrongfully, though 
 under pretense of the statute, done." The Montana 
 statute there in controversy (152 U. S., supra) author- 
 ized a hearing in court on notice given. The right was 
 tried in court. ^A^at may be rightfully done under the 
 Montana statute was tried in court under that statute 
 and the case was appealed to the Supreme Court of 
 the State where the judgment was affirmed. What was 
 done was done under actual authority, not under pre- 
 tense or color of authority. 
 
 Does the rule prescribed by statute come in con- 
 flict with that prescribed by the Constitution ? Has the 
 Legislature x^rescribed a rule forbidden by the Consti- 
 tution f 
 
 Let the statute in terms provide beyond a doubt 
 that in levying this tax a general benefit is sufficient : 
 may the taxing power rightfully under such statute 
 levy the tax where such general benefit only exists! 
 
 In rendering the opinion of the Supreme Court of 
 Missouri in City of Pleasant Hill v. Dasher, 120 Mo. 
 675, at 680 (A. D. 1893), the court, referring to City of 
 St. Louis to use of Seibert v. Allen, 53 Mo. 44, says : 
 
 "It was held in clear and distinct terms that the 
 Legislature had no power to authorize a personal judg- 
 ment against the property-owner in suits to recover 
 these local assessments." 
 
 Now apply the same construction to local taxation 
 according to the frontage. This special, j)eculiar, excep- 
 tive benefit is incorporated into the statute by the court 
 in order to render the statute constitutional. Local 
 taxation according to general benefit is unconstitu- 
 tional. That was not denied in any case until after
 
 Chap. 6] Power of Taxation. 139 
 
 1880. The same exceptive iKMiefit was added l)y the 
 court to all local taxation, it made no sort of ditfer- 
 ence whether this local tax was according to benefit or 
 according to value or by the acre or according to front- 
 age or other-vvdse, the court in all cases added the ex- 
 ceptive benefit in order to its constitutional validity. 
 This exceptive benefit has been judicially incorporated 
 into this and like statutes for so long a time that the 
 court now (A. D. 1873 and since) decline to consider 
 these laws unconstitutional on the ground of "what 
 may possibly happen" under a literal interpretation of 
 them. The Legislature passed laws that were uncon- 
 stitutional until such laws were amended by tlie courts 
 so as to make them conform to the Constitution by re- 
 quiring this exceptive benefit in addition to the legisla- 
 tive requirements. The writer would mildly suggest 
 that it is best to allow the Legislature to make the laws, 
 and if the law so made fails to conform to the consti- 
 tutional requirements, decide it void and allow the Leg- 
 islature to make a new law. 
 
 In Neivhy v. Platte Coiinty the road law of 1845, 
 as amended by the court, was held to be constitutional. 
 Perhaps if this judicial amendment, incorporated into 
 the law by the courts, had been offered in the Legisla- 
 ture it would have defeated the enactment of the law. 
 The special benefit was necessary to the constitutional 
 validity of the law and this judicial construction of the 
 Constitution became a ])art of the Constitution the 
 same as if incorporated into it. 
 
 The question is one of legislative intent alone, in 
 the construction of statute law (for a state constitution 
 is a statute within the rule). If the Legislature of Mis- 
 souri had in her road law of 18-4-5 provided that the 
 road commissioners or jury should take into considera- 
 tion the advantages as well as disadvantages, and that 
 the advantages to be considered must be s])ecial, ]KMnil-
 
 140 Law of Local Taxation. [Chap. G 
 
 iar, exceptive, then their act would have been constitu- 
 tional. But suppose in a separate section, tliere was a 
 provision that general benetits should be taken into 
 consideration, then this section alone should have been 
 unconstitutional. 
 
 A question similar to this came up in Connolly v. 
 Union Sewer Pipe Co. (A. D. 1902), 184 U. S. 540. In 
 the majority opinion the court says : 
 
 ''The principles applicable to such a question are 
 well settled by the adjudications of this court. If dif- 
 ferent sections of a statute are independent of each 
 other, that which is unconstitutional may be disregard- 
 ed, and valid sections may stand and be enforced. But 
 if an obnoxious section is of such import that the other 
 sections without it would cause results not contem- 
 plated or desired by the Legislature, then the entire 
 statute must be held inoperative. The first section of 
 the act here in question embraces by its term's all per- 
 sons, firms, corporations, or associations of persons 
 who combine their capital, skill or acts for any of the 
 purposes specified, while the ninth section declares that 
 the statute shall not apply to agriculturists or live- 
 stock dealers in respect of their products or stock in 
 hand. If the latter section be eliminated as unconsti- 
 tutional, then the act, if it stands, will apply to agricul- 
 turists and live stock dealers. Those classes would in 
 that way be reached and fined, when, evidently, the 
 Legislature intended that they should not be regarded 
 as offending against the law, even if they did combine 
 their capital, skill or acts in respect of their products 
 or stock in hand. Looking then at all the sections to- 
 gether, we must hold that the Legislature would not 
 have entered upon or continued the policy indicated by 
 the statute unless agriculturists and live-stock dealers 
 were excluded from its operation and thereby protect- 
 ed from prosecution. The result is that the statute
 
 Chap. G] PowEu OF Taxation. 141 
 
 must be regardod as an entirety, and in that view it 
 must be adjudged to l)e unconstitutional as denying 
 the equal protection of the laws to those within its jur- 
 isdiction who are not embraced by tlie ninth section." 
 But persons are not embraced. 
 
 The obnoxious section of the Illinois statute is em- 
 braced in these words as quoted in the opinion at page 
 554, near the bottom : 
 
 "Section 9. The provisions of this act shall not 
 apply to agricultural products or live stock while in the 
 hands of the producer or raiser." 
 
 This act shall not apply to, first, agricultural pro- 
 ducts in the hands of the ])roducer or raiser; second, 
 to live stock in the hands of the })roducer or raiser. The 
 Illinois Legislature did not intend that agriculturists 
 might do the forbidden things without liability to pros- 
 ecution. It did not intend that raisers or producers of 
 live stock should not be subject to the penalties of the 
 law. Agriculturists and stock raisers could not com- 
 bine to make sewer pipe and control the market price. 
 They are within the statute notwithstanding section 9. 
 
 Section 8 declares void any contract or agree- 
 ment made in violation of the law, and the contract is 
 not enforcible in the courts. Of course an executory 
 contract could not be enforced. But if the contract is 
 executed by delivery and acceptance of the property, 
 then the contract is void and the purchaser has the sel- 
 ler's property not ])aid for and the seller will quickly 
 arrive at the locus penitoifide and sue for the value of 
 the property. The seller will repudiate the illegal con- 
 tract and sue for the property or its value. 
 
 Section 10 ]>rovides that any purchaser sliall not 
 be liable for the price or i)ayment of such articles and 
 may plead the act as a defense. But if sold for cash 
 the purchaser has no recourse or remedy. With all 
 due respect to the justice rendering tlie o]iinion of the
 
 142 Law of Local Taxation. [Chap. 6 
 
 court and the justices concurring therein, the doctrine 
 announced is a very dangerous one. This Illinois stat- 
 ute undoubtedly intended to include and did include 
 sewer pipe manufacturing and selling and what the 
 Union Sewer Pipe Manufacturing Company did was 
 intended to l>e prohibited and the contract was intend- 
 ed to be rendered void. 
 
 The State of Illinois undoubtedly needs and uses a 
 vast amount of sewer and drainage pipe, as well as a 
 large amount of agricultural products and live stock. 
 
 May the Legislature enact laws on this subject and 
 prevent combinations and trusts in drainage and sewer 
 pipe, its manufacture and sale, or may combinations 
 and trusts be made to an unlimited extent with no 
 power in the Legislature to afford relief? 
 
 The court say (and very properly) that this Illi- 
 nois statute is very general, and agriculturists and 
 stock raisers are included in the several sections but ex- 
 cluded by section 9. 
 
 Suppose the language of the Illinois statute had 
 been changed, and sewer and drainage pipe makers and 
 dealers had been named by specific words in the legis- 
 lative aet and all others had been omitted, would such 
 statute contravene the fourteenth amendment as being 
 a denial of the equal protection of the laws? Say the 
 court at page 556: 
 
 ''That the arrangement or coirfbination made be- 
 tween the Union Sewer Pipe Company and other com- 
 jianies, cor])orations and firms, created such a trust as 
 the Illinois statute forbids, is manifest from the evi- 
 dence in the record. It is equally true that if the plain- 
 tiff was an Illinois corporation, its charter could be for- 
 feited and an end put to its corporate existence by pro- 
 ceedings instituted by the attorney-general of the State 
 under sections 1, 2, and 3. It is also clear that, if the 
 statute is not altogether invalid the defendants could
 
 Chap. 6] Power of Taxation. 143 
 
 plead non-liability for the i)ijie purcliase<l by tliem up- 
 on the ground that the jilaintilY was, under the statute 
 of Illinois, an illegal combination and the contracts 
 which it made with the defendants were void. [Se<'- 
 tions 8 and 10.] The statute expressly authorizes such 
 a defense. In that particular, the defense based upon 
 the statute of Illinois differs from the other special de- 
 fenses. ' ' 
 
 Conform the statute to the particular case in hand 
 so as to include all sewer and drainage pipe and the 
 statute will read thus : 
 
 **See. 1. That a trust is a combination of capital, 
 skill or acts by two or more persons, firms, corpora- 
 tions or associations of persons, or two or more of 
 them in the manufacture, transportation, and sale of 
 sewer and drainage pipe for either, any or all of the 
 following purposes: First, to create or carry out re- 
 strictions in trade in sewer and drainage pipe ; second, 
 to limit or reduce the production or increase or reduce 
 the price of sewer and drainage pipe ; third, to prevent 
 competition in the manufacture, making, transporta- 
 tion, sale or purchase of sewer and drainage pipe; 
 fourth, to fix at any standai'd or figure whereby its 
 l)rice to the public shall be in any manner controlled or 
 established upon any sewer or drainage pipe intended 
 for sale, use or consumption in this State, or to estab- 
 lish any pretended agency whereby the sale of said 
 sewer or drainage pipe shall be covered up and made to 
 appear for the original vendor for a like pur]iose or 
 purposes, and to enable such original vendor or manu- 
 facturer to control the wholesale or retail ]u-ice of any 
 such sewer or drainage ]>i]^e after the title to such 
 sewer or drainage pi])e shall have passed from such 
 vendor or manufacturer; fifth, to make, enter into or 
 examine or carry out any contract, obligation or agree- 
 ment of any kind or description by which they shall
 
 1-14 Law of Local Taxation. [Chap. 6 
 
 bind or have bound themselves not to sell, dispose of or 
 transport any such sewer or drainage pipe below a 
 common standard, figure or card or list price, or by 
 which they shall agree in any manner to keep the price 
 of such sewer and drainage pipe at a fixed or graduated 
 figiire, or by which they shall in any manner settle or 
 establish the price of any sewer or drainage pipe be- 
 tween them or themselves and others or to preclude a 
 free and unrestricted competition among themselves or 
 others in the sale or transportation of any such sewer 
 or drainage pipe, or by which they shall agree to pool, 
 combine or unite any interest they may have in con- 
 nection with the sale or transportation of any such 
 sewer and drainage pipe, that its price might in any 
 manner be affected. 
 
 ''Sec. 2. That any corporation holding a charter 
 under the laws of this State which shall violate any of 
 the provisions of this act shall thereby forfeit its char- 
 ter and franchise, and its corporate existence shall 
 cease and determine. 
 
 ''Sec, 3. For a violation of any of the provisions 
 of this act by any corporation mentioned herein, it 
 shall be the duty of the attorney-general or prosecuting 
 attorney, upon his own motion, to institute suit or quo 
 warranto proceedings at any county in this State in 
 which such corporation exists, does business or may 
 have a domicile, for the forfeiture of its charter rights 
 and franchise, and the dissolution of its corjiorate ex- 
 istence. 
 
 ' ' Sec. 4. Every foreign corporation violating any 
 of the provisions of this act is hereby denied the right 
 and prohibited from doing any business within this 
 State, and it shall be the duty of the attorney-general 
 to enforce this provision by injunction or other proper 
 proceeding, in any county in which such foreign cor- 
 poration does business, in the name of the State on his 
 relation.
 
 Chap. ()] Power of Taxation. 145 
 
 "Sec. 5. Any violation of either or ail of the pro- 
 visions of section one of this act shall be and is hereby 
 declared to be a conspiracy against trade and a misde- 
 meanor; and any person who may be or may become 
 engaged in any such conspiracy, or take part therein, 
 or aid oi- advise in its commission, or who shall, as 
 principal, manager, director, agent, servant or em- 
 ployee, or in any other capacity, knowingly carry out 
 any of the stipulations, })urposes, prices, rates, orders 
 thereunder, or in pursuance thereof, shall be punished 
 by fine not less than $2,CM)0 nor more $5,000. 
 
 "Sec. 6. In any indictment or information for any 
 offense named in this act, it is sufficient to state the pur- 
 poses and effects of the trusts or combinations in sewer 
 and drainage pipe and that the accused was a member 
 of, acted with or in ])ursuance of it, without giving its 
 name or description, or how or where it was created. 
 
 " Sec. 7. In prosecutions under this act it shall be 
 sufficient to prove that a trust or combination as de- 
 fined herein exists, and that the defendant belonged to 
 it or acted for or in connection with it, without proving 
 all the members belonging to it, or proving or produc- 
 ing any article of agreement or any written instrument 
 on which it may have been based, or that it was evi- 
 denced by any written instrument at all. 
 
 "Sec. 8. That any contract or agreement in vio- 
 lation of the provisions of this act shall be absolutely 
 void and not enforceable either in law or equity. 
 
 "Sec. 9. Will be omitted as of no use because the 
 act is directed against sewer and drainage pipe alone. 
 
 "Sec. 10. Any purchaser of any sewer or drain- 
 age pipe from any person, firm, corporation or associa- 
 tion of persons, or of two or more of them, transacting 
 business contrary to any ]>rovision of the preceding 
 sections of this act, shall not be liable for the ]irice or 
 payment of such sewer or drainage pipe and may i)lead 
 
 10
 
 146 Law of Local Taxation. [Chap. 6 
 
 this as a defense to any suit for such \)vice or pay- 
 ment. ' ' 
 
 It is said that the Legislature of Illinois cannot 
 make a class and declare penalties against the class, 
 and then by an independent section provide that cer- 
 tain persons in this class shall be exempt from the pen- 
 alties provided in the act. But they can make classes. 
 Can they declare who shall be members of the class? 
 Then they can determine who shall not be members of 
 the class. This is what the Illinois Legislature did. 
 Farmers and stock raisers were not in the class. 
 Makers of sewer pipe were included in the class and 
 farmers excluded. It was not intended that farmers 
 might make sewer and drainage pipe, and if they did 
 so, they would not be amenable to the act of the Illi- 
 nois Legislature. It was not intended that if stock rais- 
 ers should make sewer and drainage pipe, and if they 
 made such sewer and drainage pipe and entered into 
 combinations and trusts, they were not amenable to the 
 act. No such exemption was intended. The classifica- 
 tion is not arbitrary as if the Illinois Legislature de- 
 clared that all red-headed men should be exempt from 
 all penalties enjoined by the act, that they might make 
 and sell sewer and drainage pipe and make all the com- 
 binations, trusts forbidden by the act without incur- 
 ring the penalties inflicted on men not red-headed. Man, 
 woman and child, old and young, rich and poor, white 
 and black, citizen and denizen, alien may raise agricul- 
 tural products and live stock. Every one has the abso- 
 lutely equal protection of the law. It is denied to no 
 one. ''The provisions of this act shall not apply to 
 agricultural products or live stock while in the hands 
 of the producer or raiser." The product is exempt no 
 difference who may be the producer. Live stock is ex- 
 empt no difference who may be the raiser. Every one 
 receives the equal protection of this Illinois statute. It
 
 Cha]). (]] Power of Taxation. 147 
 
 is indeed somewhat singular tliat the Illinois Legisla- 
 ture should have power to declare that fanners and 
 stock raisers were in the class and yet they have not the 
 l)0wer to declare that thoy were not in class. They have 
 l)0wer to include, but they cannot exclude. The power 
 to declare who shall be in the class, implies the power 
 to declare wiio shall not be in the class. Everj^ sewer 
 ])i]ie manufactui'er in the TTnited States may go to Illi- 
 nois and raise all the potatoes he wants, even if they 
 cost him two dollars each, and he will not be amenable 
 to the penalties of this Illinois statute. Sewer and 
 drainage i)ii)e are within the statute. Potatoes are not 
 within the statute as long as the raiser keeps them in 
 his possession. Com and wheat are in the samie class 
 till they get out of the farmer's hands and go to eleva- 
 tors in Chicago and there combinations and trusts are 
 harmful and are forbidden by all to all w^ithout excep- 
 tion and without excluding any man, woman or child, 
 white or black, rich or poor. Illinois did not deny to 
 any person within its jurisdiction "the equal protec- 
 tion of the laws." 
 
 The Illinois Legislature may pass laws to prevent 
 horse stealing; they may make a class excluding work 
 oxen from the class. This may be done by an express 
 exclusion or an implied exclusion by failing to name 
 work oxen, for ''expressio unius^ exclusio alterins." 
 Horse stealing is forbidden to all. The horse thief 
 when arraigned in court pleads that he is entitled to the 
 equal protection of the law wath the ox thief. Under 
 such a construction, the fourteenth amendment becomes 
 a veiy strong ]irotection to horse thieves. Ox thieves 
 are excepted and courts must presume that the Legis- 
 lature would not have passed the law if they had had an 
 idea that ox thieves were not to be punished. The Illi- 
 nois statute forbids things, not persons. The things 
 forbidden can not be done by any one.
 
 1-18 Law of Local Taxation. [Chap. 6 
 
 The Illinois statute provides that this law shall 
 not apply to agricultural products or live stock in the 
 hands of the raiser or producer. The law does apply 
 to the agricultural product and live stock after it leaves 
 the hands of the i)roducer or raiser. The Illinois act 
 would be different if it had provided that it did not ap- 
 ply to "agriculturists and stock raisers" in place of 
 agricultural products and live stock. The constitu- 
 tional amendment is, "nor shall any State deprive any 
 person of life, liberty or property without due process 
 of law, nor deny to any person within its jurisdiction 
 the equal protection of the law. ' ' This does not nuean 
 that the State must give the same equal protection to 
 the gambler in his gambling that it gives to the 
 preacher in his preaching, or the teacher in his teach- 
 ing, or the thief in his thieving. Things are prohibited 
 by the fourteenth amendment, not names. It was not 
 intended that rogues should be protected in their 
 roguery equal to the protection to honest men in their 
 honesty. 
 
 "We have seen that under that statute all except 
 producers of agricultural commodities and raisers of 
 live stock, who combine their capital, skill or acts for 
 any of the purposes named in the act, may be punish- 
 ed as criminals, while agriculturists and live stock rais- 
 ers, in respect of their j^roducts or live stock in hand, 
 are exempted from the operation of the statute, and 
 may combine and do that which, if done by others, 
 would be a crime against the State." 
 
 Suppose producers of agricultural commodities 
 and raisers of live stock combine their capital, skill or 
 acts for making and selling sewer and drainage pipe, 
 just as the Union Sewer Pipe Company did, would they 
 be exempt from punishment as criminals? Is this the 
 intention of the Illinois Legislature? The court con- 
 tinuing say, page 560 :
 
 Chap. 6] Power of Taxation. 149 
 
 "Tho statute so provides, notwithstanding persons 
 engaged in trade or in the sale of mei'diaiidise and 
 commodities, within tlie limits of a State, and a<>^riful- 
 turalists and raisers of live stock, are all in the same 
 general class; that is, they are all alike engaged in do- 
 mestic trade, which is, of right, open to all, subject to 
 such regulations, applicable alike to all in like condi- 
 tions, as the State may legally prescribe." 
 
 And there is not one single nuember of that class 
 that can make sewer pipe and enter into the forbidden 
 combinations without liability to punishment. The 
 statute did not intend to ]irohibit the fanner or stock 
 raiser from making sewer ]iipe. The statute did not 
 prohibit the sewer-])ipe maker from producing agricul- 
 tural products or raising live stock. The merchant, the 
 mechanic, the lawyer, the doctor, the preacher, the 
 sewer-pipe maker may all raise agricultural ])roducts, 
 and the whole class are treated exactly alike under this 
 Illinois statute. And the merchant, the mechanic, the 
 lawA'er, the doctor, the preacher, the teacher, the far- 
 mer, and the stock raiser may all make sewer pipe. It 
 is not prohibited to any one of the class. It was not in- 
 tended to be allowed to one of the class and prohibited 
 to another of the class. 
 
 The Illinois Legislature provides that certain acts 
 should not be done, irrespective of who was the actor. 
 The prohibition is absolutely universal, even the gov- 
 ernor of the State, judges of the Supreme Court and 
 all the members of the Legislature, the whole State 
 without one exception — all are included. The Illinois 
 Legislature by the act in question did not ''deny to any 
 person within its jurisdiction the equal protection of 
 the laws." Nobody is prohibited l)y the statute from 
 raising live stock; nobody is ])rohibited by the statute 
 from raising agricultural ]iroducts. If the Illinois 
 statute had ]-)rovi(led that agriculturalists and stock
 
 150 Law of Local Taxation. [Chap. 6 
 
 raisers should not be deemed within the legislative 
 enactments, then the sewer-pipe makers might raise an 
 acre of agricultural products and make millions of 
 sewer pipe, and then the courts might inquire whether 
 the sewer-]>ipe maker was really an agriculturist or was 
 his business a mere pretext or sham so as to bring his 
 acts and products within the law. The Illinois Legis- 
 lature avoided this trouble by prohibiting certain acts 
 no difference who was the actor. It is a mistake to say 
 that the Illinois Legislature intended that agricultural- 
 ists might produce agricultural products and enter into 
 all sorts of combinations and trusts without criminal 
 or civil liability. The Illinois statute provides that the 
 provisions of the act shall not apply to agricultural 
 products or live stock. Suppose we leave off the re- 
 striction while "in the hands of the producer or 
 raiser," leaving the statute to except agricultural pro- 
 ducts and live stock. It does not exempt black men or 
 white men or red-haired men or freckle-faced women. 
 It does not exemj^t the person at all, but the product. 
 They exempt the product and not the producer. May 
 the Legislature limit the exemption of this product still 
 further by confining it to the time that the product is in 
 the hands of the producer? The mischief of the trust 
 and combination becomes apparent and exists only af- 
 ter the corn and wheat have left the hands of the pro- 
 ducer and gotten to the boards of trade for purposes 
 not clearly distinguished from gambling. May the Leg- 
 islature protect the producer and consumer from the 
 evil effects of combinations and trusts? 
 
 This case and that of Newhy v. Platte County, 25 
 Mo. 258, are examples of the judicial twisting process 
 of legislative enactments. Acts are forbidden under 
 the Illinois legislative enactment now under discus- 
 sion. ISTo state can under the fourteenth amendment to 
 the Constitution of the United States deny to any per-
 
 Chap. GJ Power of Taxation. 151 
 
 son the equal protection of the hiws. Tlie Illinois legis- 
 lative act is judicially changed so as to punish all for 
 the forbidden acts except agriculturists and stock rais- 
 ers. If the State punish the strumpet for her strumpe- 
 try, it must likewise punish the virtuous woman for her 
 virtue. The Missouri act is so changed as to include 
 only special, peculiar, exceptive benefits. A general 
 benefit would render the Missouri act unconstitutional. 
 
 ''If the latter section [the one excluding agricul- 
 tural i)roducts and live stock] be eliminated as uncon- 
 stitutional, then the act if it stands will apply to agri- 
 culturists and live stock dealers ; these classes would in 
 that way be reached and fined when the Legislature did 
 not so intend. We must hold that the Legislature would 
 not have entered upon or continued the policy indi- 
 cated by the statute unless agriculturists and live-stock 
 dealers were excluded from its operation and thereby 
 protected from prosecution." 
 
 The live stock dealer and the agriculturist are no 
 more excluded or exempted by the act than the maker 
 and seller of sewer pipe or the red-haired man or 
 freckled-faced woman. 
 
 What the Union Sewer Pipe Company did, did not 
 render their contract with the purchasers of sewer pipe 
 void under any statute of the United States. The sale 
 of sewer pipe by the Union Sewer Pipe Company was 
 not void or illegal under the general common law of 
 Illinois. Under the Illinois statute what this Union 
 SeW'er Pipe Company did, rendered its contract of sale 
 void and it could not recover on such contract of sale. 
 If an agriculturist or live-stock raiser had done in sewer 
 pipe what the Union Sewer Pipe Company did, the 
 live-stock raiser and the agriculturist would have been 
 subject to all the liabilities to which the sewer pipe com- 
 pany was subject. What the sewer pipe company did, 
 did not render the contract of sale of sewer pipe void
 
 152 Law of Local Taxation. [Cliap. 6 
 
 under general common law. If the subject matter of 
 that contract of sale had be«n agricultural products in 
 lieu of sewer pipe, that contract of sale of agricultural 
 products would not be void under general common law. 
 
 The Legislature of Illinois changed the general 
 common law in reference to the contract of sale of sewer 
 pipe, when the seller is a member of some forbidden 
 trust. It makes no difference whether the seller of 
 sewer or drainage pipe be an agriculturist or live stock 
 raiser, he can not recover on the forbidden contract of 
 sale of drainage pipe. The common law has been 
 changed. A^^lo but the Illinois Legislature shall deter- 
 mine the extent of that change! 
 
 Corn and wheat are agricultural products, and af- 
 ter they have left the hands of the raiser then they come 
 within the Illinois statute. A trust may be formed to 
 obtain all the wheat and flour in Illinois ; the products 
 may be cornered and the consumers may be compelled 
 to pay exorbitant prices. The Illinois statute made 
 such sales void, and even if the wheat were delivered, 
 no recoveiy could be had on the contract if tlie seller 
 was a member of this forbidden tnist. If all the wheat 
 raisers of Illinois had combined in a trust to increase 
 the price of the wheat they raise while in their hands, 
 then this contract they make among themselves can not 
 be enforced at comimon law. If one member of the 
 trust violate the trust agreement, no action lies at com- 
 mon law for damages for the breach of such agreement. 
 This Illinois statute left the wheat raisers of Illinois, 
 with reference to the wheat they raised and in their pos- 
 session, just where the common law left them. They 
 could maintain no action for damages for the breach 
 of this trust agreement. If they sold the wheat they 
 raised, they could recover on the contract of sale un- 
 der the general common law, notwithstanding the 
 raiser of the wheat was a member of this illegal trust.
 
 Cbap. ()] Power of Taxation. 153 
 
 The Illinois statute did not change that rule of tlie com- 
 mon law. There are so many wheat raisers that it is 
 physically impossible to get them into a trust which 
 may at any time be violated by any one or more without 
 redress at law or in e(|uity or under any statute. 
 
 The wheat raised by any one while in his posses- 
 sion as raiser is not wnthin the Illinois statute. The 
 law applies to the product, not to the producer. There 
 can be no difference as to what person, firm or corpora- 
 tion may be producer. All producers have the equal 
 protection of this Illinois statute. 
 
 A father presented to his son a bundle of sticks 
 tied together and requested the son to break the bundle 
 by putting one hand at each end and his knee in the 
 middle and drawing the two ends towards his body. 
 The son tried in vain to break the bundle. In union 
 there is strength. The father untied the bundle and 
 broke the sticks one by one without difficulty. Headers 
 will recollect the old legend. The Legislature of Illi- 
 nois might have broken the trusts if it had not tied 
 them all up in one bundle. In union there is strength 
 even among the trusts, knowing as one must necessar- 
 ily know the stolid indifference of the honest masses 
 and the pernicious activity of the dishonest trusts. The 
 Illinois st<itute, as interpreted by the courts, ties all 
 the trusts together in one bundle and then in vain tries 
 to break the whole bundle. Disastrous failure was of 
 course the result. The Legislature had all the neces- 
 sary power and authority to break the sewer-i)ipe trust, 
 but the other trusts combined with it proved too pow- 
 erful. 
 
 Our local tax-laws in all the states under the tax 
 power have tied uj) large bundles of sticks and the 
 strings are so strong we can not break them, nor untie 
 the bundles or break the sticks. This is the lesson 
 taught by the Illinois statute and decisions holding it
 
 15-4 Law of Local Taxation. [Chap. 6 
 
 invalid. Of course no one can deny that this Illinois 
 statute is highly penal in its character. A statute 
 which allows any one to buy sewer pipe and to keep the 
 sewer pipe and sell or use it, and yet incur no liability 
 whatever either to pay the contract price or return the 
 sewer pipe or to pay what it is reasonably worth, is 
 highly penal in its character and ought to be strictly 
 construed, and yet the State of Illinois ought to be able 
 to prevent hurtful, injurious trusts by such penalties 
 as it may prescribe to be inflicted upon all who may do 
 the prohibited acts, without any respect as to who may 
 be the actor or doer of the prohibited thing.
 
 CHAPTER 7. 
 
 POWER OF GOVERNMEXT AS TO PROPERTY, BENEFITS AND 
 
 DAMAGES. 
 
 In this chapter is presented some considerations 
 as to the nature of that power of the government which 
 determines whether a person has property, what prop- 
 erty, how much, and its value, and the benefits or dam- 
 ages to it by reason of the acts of the public or indi- 
 viduals, both as to the fact and amount of benefit or 
 damage. 
 
 The power to determine the value of property is 
 judicial. This appears fully in Smith et al. v. Kansas^ 
 City, 128 Mo. 23, et seq. (a". D. 1894), a suit for dam- 
 ages to abutting property by reason of grading the 
 street. The first instruction given for the plaintiff is 
 in effect that, ''If the market value of said property 
 was depreciated by said grading" then the jury must 
 find for the plaintiff and if the jury find for the plain- 
 tiff then their verdict must be equal to "The amount 
 that the market value of said property was diminished 
 by such act of the defendant" Kansas City. The mar- 
 ket value of the property before the improvement and 
 the market value after the improvement must be de- 
 teniiined. The difference will be benefit or damage 
 according to the fact and evidence by which such fact is 
 established. 
 
 By the third instruction the jury were told that in 
 estimating the damages to said property they might 
 take into consideration certain elements, such as the 
 "cost of putting the property on grade, or building 
 retaining walls and other elements of damage." allow- 
 ing, however, as an offset, any appreciation or increase 
 
 (155)
 
 156 Law of Local Taxation. [Chap. 7 
 
 in value of said i)roi>erty by reason of the grading of 
 said street. For the defendant the jury were told that, 
 ''If the grading was a special benefit to the real estate 
 along with other property in the vicinity of plaintiff's 
 property, and that such special benefit equaled or ex- 
 ceeded the damages, then plaintiff is not entitled to re- 
 cover, ' ' etc. 
 
 The legislative power can not determine the mar- 
 ket value of this lot before the improvement or after 
 this improvement. How then can the legislative power 
 determine that the improvement was a damage or ben- 
 efit? The Missouri Constitution, as well as the consti- 
 tutions of nearly all the states, now provides that * * pri- 
 vate property shall not be taken or damaged for public 
 use without just compensation." This "just compen- 
 sation," either for taking or damaging, must be ascer- 
 tained by commissioners or a jury as provided bj^ law ; 
 the title must not be divested; the property must not 
 be disturbed until this "just compensation," either for 
 taking or damaging, has been paid to the owner or into 
 court for the owner. 
 
 According to the language used by tbe framers of 
 the Constitution, it was not intended that this "just 
 compensation," either for taking or damaging, should 
 be ascertained by the mayor and common council of any 
 city, town or village, or under or by any legislative or 
 executive power. This "just compensation" must be 
 paid to the landowner or into court for him. Into what 
 court? Is the board of trustees of any town or village 
 the court contemplated by the Constitution? Is the 
 common council of any city the court contemplated by 
 the Constitution into which this "just compensation" 
 must be paid for the landowner? Then the "just com- 
 pensation" is paid into some court for the owner. Who 
 shall determine this question of ownership. Does the 
 determination of this question of ownership devolve on
 
 Chap. 7] PowEK OF Government. 157 
 
 the .iiuUcial departiiioiit of the governiueiit, or on the 
 legislative department, or on the executive department? 
 Wliat kind of question is it to determine the "just com- 
 pensation" for land taken or damaged for i)ublic use? 
 
 The Supreme Court of ^lissouri in A. 1). 1857, in 
 Newby v. Platte County, 25 Mo. 258, at 263, say: 
 
 "If the state government i)ossessed no authority- 
 over ]jrivate i)roperty, except tliat of taking it for the 
 public use upon rendering the owner a just compensa- 
 tion, it would seem that under this provision, the owner 
 would be entitled to the full money value of his prop- 
 erty without any deduction. The rule of constitutional 
 Ian- being that private property can not he taJien for 
 public use by the authority of the Legislature irUhout 
 a just compensation, it follows that irhat is to be con- 
 sidered as compensation, within the meaning of the 
 clause, is a question of law for the courts and not a 
 matter for the Legislature; and under such a Constitu- 
 tion as we have supposed, with no other power over 
 private property than that of taking it for the public 
 use upon making the owner a just compensation, it 
 would be quite beyond the scope of the legislative au- 
 thority to declare that the benefit derived by the land- 
 owner from the road is the just compensation secured 
 by the Constitution." 
 
 The ])ublic take for a highway part of an owner's 
 land, leaving part of it. What is the owner's "just 
 compensation?" Tt is not, what is he damaged? To 
 ascertain this, just compensation must be done by some 
 department of the government. May this just compen- 
 sation be benefits in part and cash in part? Wliat sort 
 of question is this? Is it a question for the courts or 
 the Legislature or the executive? What department of 
 the government is to determine this question? If the 
 just compensation of the Constitution may be made in 
 benefits, who shall determine the fact and amount of
 
 158 Law of Local Taxation. [Chap. 7 
 
 benefits? Can a general benefit be a part of this just 
 compensation of the Constitution? Who shall deter- 
 mine this question? In its determination what kind of 
 power is exercised I 
 
 The question as to the nature of the power to as- 
 certain the "just compensation" for property taken 
 for public use, was discussed in Monongahela Naviga- 
 tion Company v. United States, 148 U. S. 312. The 
 Monongahela Navigation Company, under acts of the 
 Pennsylvania Legislature and by consent of Congress, 
 had erected dams in the Monongahela river and ren- 
 dered it navigable to a point at or near the West Vir- 
 ginia line. The Congress of the United States passed 
 an act to improve the navigation of this river, and to 
 this end negotiations were to be made to purchase the 
 dams, and if such negotiations were unsuccessful, then 
 the secretary of war was to begin condemnation pro- 
 ceedings in the United States Circuit Court in Pennsyl- 
 vania, either party having the right to writ of error 
 or appeal. The Act of Congress had this provision: 
 
 ''Provided, that in estimating the sum to be paid 
 by the United States, the franchise of said corporation 
 to collect tolls shall not be considered or estimated." 
 [Vol. 25, U. S. Statutes at Large, 400-411, Chap. 860.] 
 
 It does seem that the court mistook the meaning 
 of Congress. That a franchise is property can not be 
 denied. But this franchise was wholly unnecessary^ to 
 the United States. Congress evinced no desire to con- 
 demn this franchise. The United States could improve 
 this river, under the Constitution of the United States, 
 without getting the right to do so from this corpora- 
 tion. If the negotiations had been successful and the 
 United States had bought this dam No. 7, is it possible 
 that the United States must go further and buy this 
 franchise before the dam No. 7 can be used by the pub- 
 lic under the United States? But as construed by the
 
 Chap. 7] Power of Government. 159 
 
 Supreme Court of tlie United States it was necessary 
 to condemn and take tliis franchise. The United States 
 could not do without it. 
 
 Speaking of "just compensation," and remarking 
 that "just" renders the matter emphatic and that "just 
 compensation" is to be a full equivalent for the prop- 
 erty taken, the court say (page 326) : 
 
 "This excludes the taking into account, as an ele- 
 ment in the compensation, any supposed benefit that 
 the owner may receive in common with all from the 
 ])ublic uses to which his private property is appropri- 
 ated, and leaves it to stand as a declaration that no 
 private property shall be appropriated to public uses 
 unless a full and exact equivalent for it be returned to 
 the owner. 
 
 "TVe do not refer in this to the case where only a 
 portion of a tract is taken, or express any opinion on 
 the vexed question as to the extent to which the bene- 
 fits or injuries to the portion not taken may be brought 
 into consideration." 
 
 After remarking that this question may come up 
 in the future trial of this case, the court continuing say : 
 
 "By this legislation Congi-ess seems to have as- 
 sumed the right to determine what shall be the measure 
 of compensation. But this is a judicial and not a leg- 
 islative question. The Legislature may determine what 
 private property is needed for public purposes [Did the 
 government need the franchise'?]— that is a question of 
 a political and legislative character; but when the tak- 
 ing has be«n ordered, then the question of compensa- 
 tion is judicial. It does not rest with the public tak- 
 ing the property, through Congress or the Legislature, 
 its representative, to say what compensation shall be 
 paid or even what shall be the rule of compensation. 
 The Constitution has declared that just compensation
 
 160 Law of Local Taxation. [Chap. 7 
 
 shall be paid and the ascertaiument of that is a judic- 
 ial inquiry." In Charles River Bridge v. Warren 
 Bridge, 11 Pet. 420, at 571, Mr. Justice McLean, in his 
 opinion, referring to a provision for compensation 
 found in the charter of the Warren Bridge, uses this 
 language : 
 
 ''They (the Legislature) provide that the new com- 
 pany shall pay annually to the college, in behalf of the 
 old one, one hundred pounds. By this provision it ap- 
 pears that the Legislature has undertaken to do what 
 a jury of the country only could constitutionally do; 
 assess the amount of compensation to which the com- 
 plainants are entitled." See, also, the following au- 
 thorities; Commonivealth v. Pittsburgh d Connells- 
 ville Railroad, 58 Penn. St. 26-50; Penn. Railroad v. 
 Bait. S Ohio Railroad, 60 Maryland 263; Isom v. Mis- 
 sissippi Central Railroad, 36 Mississippi 300. 
 
 In the last of these cases, and on page 315, will be 
 found these observations of the court : 
 
 ' ' The right of the Legislature of the State, by law, 
 to apply the property of the citizen to public use, and 
 then to constitute itself the judge in its own case to de- 
 termine what is the just compensation it ought to pay 
 therefor, or how much benefit it has conferred upon the 
 citizen by thus taking his property without his consent, 
 or to extinguish any part of such compensation by pros- 
 pective conjectural advantage, or in any manner to in- 
 terfere with the just powers and province of courts and 
 juries in administering right and justice, can not for a 
 moment be admitted or tolerated under our Constitu- 
 tion. If anj^thing can be clear and undeniable, upon 
 principles of natural justice or constitutional law, it 
 seems that this must be so." 
 
 "We are not therefore concluded by the declara- 
 tion in the act that the franchise to collect tolls is not 
 to be considered in estimating the sum to be paid for 
 the property."
 
 Chap. 7] Power of Government. 161 
 
 Mr. Welty, in his work on Assessments, page 37, 
 section 25, says : 
 
 ''Sec. 25. Assessors act both Judicially and Min- 
 isterially.— In the exercise of the functions and in the 
 discliarge of the duties of his office, an assessor acts 
 both judicially and ministerially; some of his acts are 
 judicial and some are ministerial. When it becomes 
 necessary to determine a question of law or fact, the act 
 is judicial. It may safely be affirmed that in no in- 
 stance does an assessor perform all the acts necessary 
 to perfect the assessment of a single person or item of 
 property without the exercise of acts 'Eminently ju- 
 dicial in their nature.' He is clothed with power to 
 administer oaths; to receive both written and oral 
 statements touching the matters his office gives him ju- 
 risdiction to inquire about, and to determine the facts 
 necessarily entering into an assessment; such as the 
 liability of persons to assessment and taxation within 
 his district; the property owned by them and the por- 
 tion thereof subject to taxation; the portion thereof, 
 if any, exempt from taxation and the value thereof. 
 These acts are spoken of in all the cases as judicial in 
 their nature. There are other acts which are merely 
 ministerial." 
 
 In note 1, page 38, the author quotes from Weaver 
 V. Devendorf^ 3 Denio 117, wherein the court say: "In 
 some particulars the duty of the assessors is undoubt- 
 edly ministerial ; but in fixing the value of tangible 
 property the power exercised is in its nature purely ju- 
 dicial." If it were true that the power to ascertain 
 the value of property was legislative in its nature, then 
 the Constitution must be changed. The "just compen- 
 sation" of the Constitution contemplates a juiy or com- 
 missioners and a court into which money may be paid, 
 evidently a judicial proceeding. When the whole land 
 is taken, then the value of the land is the "just com- 
 
 11
 
 162 Law of Locu:. Taxation. [Chap. 7 
 
 pensatioD. " Cau the legislative power determine that 
 value I Can the Legislature do what the Constitution 
 requires a juiy to do! If the Legislature may in this 
 one instance do what the Constitution requires the 
 court and jur^y to do, why may not the Legislature it- 
 self do all the things that the Constitution requires the 
 court and jury to do I 
 
 The Legislature is not only without power to deter- 
 mine the value of real estate before a public improve- 
 ment is made in its vicinity or after it is made and for 
 that reason can not determine benefits or damages, but 
 the legislative power can not determine the number of 
 articles of personal property belonging to any one. Not 
 only is the legislative power without authority to fix 
 the value for taxation of farmer Smith's cow or his 
 mule or his horse or his wagon or his harness, but the 
 legislative power can not determine how many mules, 
 horses or cows farmer Smith owns. The legislative 
 power can not enter farmer Smith's hen roost and 
 count and value his chickens for taxation and bind 
 farmer Smith hj the count and value. The legislative 
 power can not enter farmer Smith's horse lot or sta- 
 bles and count and value his cows, his mules or his 
 horses and bind him by such count and value. The 
 legislative power can not enter the merchant's store 
 and measure the number of yards of ribbon and of 
 calico in the store or weigh his sugar and coffee and 
 salt and bind such merchant by such weight or meas- 
 urement for purposes of taxation. 
 
 If the legislative power maj^ determine that far- 
 mer Smith has two mules, when in fact he has only one, 
 and bind farmer Smith by such count, then such legis- 
 lative power may determine that farmer Smith has one 
 hundred mules when in fact he has none, and farmer 
 Smith will be without remedy in the courts. If the leg- 
 islative power refer the matter of value to a judicial
 
 Chap. 7 j Power OF Government. 103 
 
 office on notice and Jiearing, and only determine num- 
 ber, it will be just as difficult for the assessor acting 
 judicially to determine the value of non-existent mules 
 as to determine the value of non-existent benefits. If 
 the legislative power can not detennine that farmer 
 Smith has for taxation one thousand dollars worth of 
 nmles, that legislative powder can not determine that he 
 has for taxation one thousand dollars worth of bene- 
 fits. If this be not true then the legislative power may 
 for purposes of taxation detennine that each farmer 
 has two hundred mules worth $250 each for taxation, 
 and enforce the collection of the tax, and the farmer 
 will have no remedy in the courts to show the error in 
 value or number. All such acts although enacted in 
 the form of laws, are not laws ; they are not ivithin the 
 bounds of Icfiislative poiver. The acts are those of the 
 trespasser, the robber, the thief. They are not acts of 
 legislation, 
 
 **It may well be doubted whether the nature of 
 society and of government does not prescribe some 
 limits to the legislative power, and if any be prescribed, 
 where are they to be found, if the property of an in- 
 dividual, fairly and honestly acquired, may be seized 
 without com'iiensation. To the Legislature all legisla- 
 tive power is granted; but the question, whether the 
 act of transferring the property of an individual to 
 the ])ublic, be in the nature of legislative power, is well 
 woi-thy of serious reflection. It is the peculiar prov- 
 ince of the Legislature to prescribe general rules for 
 the government of society; the application of these 
 rules to individuals in sociefif nould seem to he the duty 
 of other departments." [Fletcher u. Peck, 6 Cranch 
 87, at 135-6, ]\rarshall, C. J.] 
 
 According to the decision in Monongahela Navi- 
 gation Co. V. United States, 148 U. S. 312, the legisla- 
 tive power can not determine *Must com]iensation" for
 
 164 Law of Local Taxation. [Cliap. 7 
 
 taking private property for public use ; the question is 
 judicial. We have a constitutional provision that pri- 
 vate property shall not be taken or damaged for pub- 
 lic use without ''just compensation." The question 
 what is just compensation for damaging private prop- 
 erty for public use, is just as much of a judicial ques- 
 tion as what is just compensation for taking private 
 property for public use. If the Legislature cannot pre- 
 scribe niles to the courts by which to determine just 
 compensation for taking private property for public 
 use, then the Legislature cannot prescribe rules by 
 which to determine just compensation for damaging 
 private property for public use. The question ought 
 to be judicial in both cases or neither. Monongahela 
 Navigation Company v. United States, determines an- 
 other question. The act of Congress provides that 
 nothing shall be allowed for the franchise. This is 
 equivalent to saying the United States do not take the 
 franchise. The United States have no possible use for 
 it. The United States can build those dams and oth- 
 ers and let the commerce of the world pass over them 
 without this franchise— without getting any right from 
 the Monongahela Navigation Company. Neither the 
 State of Pennsylvania nor the Congress of the United 
 States could do any act or make any grant that would 
 impair the power of Congress over commerce. Here is 
 a question whether the United States took the franchise 
 or did not take it. Congress evidently had the idea 
 that the United States had no use for the franchise. 
 There was no necessity for taking it as Congress de- 
 termined (perhaps very properly, too, as the Legisla- 
 ture determines the necessity to take and what to take). 
 Was the franchise taken! I make no assertion here one 
 way or another, either whether it was taken or was not 
 taken, but what sort of question is to l^e determined? 
 Here Congress did not authorize taking the franchise,
 
 Chap. 7] Power of Government. 165 
 
 certainly not in tonns. Congress provided for taking 
 these dams and paying for them, and farther provided 
 that the franchise should not be paid for as they did not 
 need it, and did not take it or pro])ose to take it. 
 
 Could Congress do or authorize to be done what 
 was here done, and declare that thereby the franchise 
 was not taken and by such determination conclude the 
 owner of the franchise so that the courts could not in- 
 quire into the question ? The United States were held 
 to have taken this franchise, although they condemned 
 the locks only. Congress could not declare that the 
 franchise was not taken and by such detennination con- 
 clude the owner and the courts from inquiring into the 
 question whether it was taken or not. The Legislature 
 make certain legislative enactments. Whether by these 
 enactments private property is or is not taken is a ju- 
 dicial question. The Legislature cannot determine that 
 their acts are not a taking and conclude the property- 
 owner by such legislative determination so that the 
 courts cannot inquire into the matter. Congress de- 
 clared that they did not take this franchise ; the courts 
 declared that they did take it. The courts were not 
 bound by the legislative declaration that the property 
 was not taken. What is a taking within the meaning 
 of the Constitution is a judicial question for the courts. 
 The legislative power, the power that takes land for 
 public use determines the necessity for taking and the 
 amount, and in general this legislative detemiination to 
 take and the amount cannot be reviewed by the courts. 
 
 After there is a legislative determination to take 
 private property for public use, then there must be a 
 taking; and then the question may occur, Wliat is a 
 taking? A block in a city, proposed to be taken for a 
 park, may be full of residences of magnificent pro]X)r- 
 tions, tiled floors, hand-carved mahogany mantels, and 
 other elegant appurtenances of the home. These ele-
 
 1^6 Law of Local Taxation. [Cliap. 7 
 
 gant houses are a damage to a park. They are of no 
 possible use to the public for park purposes. They are 
 a positive damage. Can the legislative power condemn 
 the land alone and pay for the land alone and let the 
 owners keep the houses! The legislative authority 
 gay these houses are not necessary for a park, and their 
 determination is in most cases conclusive on the ques- 
 tion what to take and what is necessary to be taken. In 
 the condemnation proceeding the owners ask "just com- 
 pensation" for these slate roofs, these tiled floors, these 
 mahogany mantels, these elegantly hand-carved dooi's 
 and splendidly cemented cellars. We do not want your 
 mahogany mantels, your slate roofs, your tiled floors. 
 We decide these are not necessary for a park and we 
 are not authorized to take any property unless it is 
 necessary. The legislative power declares it did not 
 take or authorize to be taken these carved mahogany 
 mantels, mosaics, tiled floors, slate roofs and rat-proof 
 cellars. How can you malce a park out of a rat-proof 
 cellar? The legislative power declares it did not take 
 this property. Is that legislative determination con- 
 clusive on the courts ? Here are certain acts done. Do 
 these acts constitute a taking within the meaning of 
 that provision of the Constitution that private prop- 
 erty shall not be taken for public use \\nthout just com- 
 pensation! A\liat power shall determine this question? 
 The legislative power ought not to be allowed to 
 decide its own case in its own favor and exclude any 
 inquiry on the part of the courts. The thief is ar- 
 raigned in court for stealing and he pleads not guilty; 
 he says he did not steal and his declaration to that ef- 
 fect, his decision on the fact, is conclusive on the courts. 
 This is the legitimate consequence of this train of rea- 
 soning. The judicial power must determine just com- 
 pensation for private property taken or damaged for 
 jmblic use. The judicial power miust determine the
 
 Chap. 7] Power OF Government. 167 
 
 whole matter. What is a taking; what is a daimg-ing; 
 what is just coin])ensation? These are all judicial <iues- 
 tions. 
 
 If the Legislature decide any one of the above 
 questions, then there is nothing left for the eoui-ts to act 
 on. According to the ])rovisions of the Constitution, 
 just compensation for damaging or taking shall be as- 
 certained by a jury or commissioners. If the legisla- 
 tive i)Ower decide what is just compensation and bind 
 the courts by such decision, then there is nothing for 
 court, jury or commissioners to do. Tf the legislative 
 power decide that there is no taking, then there is 
 nothing for court, jury or commissioners to do. Tf the 
 legislative ]wwer decide there is no damaging, then 
 there is nothing for this court, jury or commissioners 
 to determine. The legislative power cannot say we did 
 not take the franchise and bind the owner so the mat- 
 ter could not be inquired into in the courts. The leg- 
 islative power could not say we did not take the houses 
 in the park district and thereby bind the owners. The 
 whole section in the Constitution is a ]irohibition. 
 
 A corjioration is charged with taking land for pub- 
 lic use. The corporation decides the case in its own 
 favor by its legislative declaration that it did not take. 
 The legislative power takes or damages property and 
 denies it took or damlaged and its legislative denial is 
 conclusive. The question as to what power determines 
 benefits was discussed in Kansas Cifij v. Baird, 98 Mo. 
 215, at 220-1. The verdict embraced all the property 
 in the district. Several pieces of property were marked 
 thus on the verdict opposite the description of the 
 property, ''Benefit nothing." Say the court, page 220, 
 bottom : 
 
 "The argument is, that the finding of the council 
 is a judicial determination that all property within the 
 defined limits is benefited and that the jury has nothing
 
 168 Law of Local Taxation. [Chap. 7 
 
 to do but apportion the benefits." The court observe : 
 "The council does not nor can it assess damages or ben- 
 efits. These questions are left to the jury." 
 
 The case was a condemnation proceeding. The 
 "damages" spoken of were the just compensa- 
 tion of the Constitution for property taken and the 
 benefits are the special, peculiar, exceptive benefits nec- 
 essary for this kind of taxation within the benefit dis- 
 trict defined by the council. "And the jury has no right 
 to say in its verdict that property within the district 
 prescribed by the ordinance is not benefited at all" 
 (page 217 in brief of counsel). Court and jury found 
 there were no benefits when the council found there 
 were. What was a benefit and how much, were ques- 
 tions for court and jury, certainly not legislative ques- 
 tions. If the legislative power cannot determine bene- 
 fits in a condemnation proceeding or in a proceeding 
 to ascertain just compensation for damaging private 
 property for public use (and when you determine 
 benefits you exercise the tax-power), how can that leg- 
 islative power determine the fact and amount of bene- 
 fits in the exercise of the same tax power to pay for 
 paving a street! The legislative power cannot, under 
 its taxing power, determine benefits for grading a 
 street ; how can the Legislature in the exercise of the 
 same tax power determine the fact and amount of ben- 
 efits for paving? You grade a street and leave the 
 property high up in the air, inaccessible to the owner; 
 what good does a sidewalk to that property do that 
 owner? How can the Legislature determine the fact 
 and amount of benefit I They do not and cannot know 
 the cost of a work which must be let to the lowest bid- 
 der. How can they determine that the benefit will equal 
 the cost when without omniscience they cannot deter- 
 mine cost? The charters do not endow them with om- 
 niscience. This is about the only power not conferred.
 
 CHAPTEK 8. 
 
 CHANGES IN JUDICIAL RULINGS. 
 
 We come now to a change in the judicial rulings 
 of the Supreme Court of Missouri, and other states 
 also. That change is from the old doctrine as an- 
 nounced in the earlier decisions in favor of individual 
 right, to one directly the opposite. 
 
 The first case of importance in which this change 
 is noted is that of Keith v. Bingham, 100 Mo. 300 (A. D. 
 1889). The suit was on a tax-bill for grading the street 
 on which the lot abutted, and against which it was 
 charged to be a lien. The tax-bill sued on was issued 
 July 26, 1883, and was therefore under the Constitution 
 of Missouri of 1875. The ordinance for the work was 
 approved in October, 1882, seven years after the adop- 
 tion of the Constitution of 1875 and nine years after 
 the Supreme Court decided that "Local assessments 
 are constitutional only when imposed to pay for local 
 improvements conferring special benefits" (54 Mo. 
 474). 
 
 In Keith v. Bingham the grading was a damage 
 forbidden by the Constitution, and yet the tax was con- 
 stitutional as against the very person and property in- 
 tended to be i)rotected. In rendering the opinion that 
 court, on page 306, says : 
 
 ''It is claimed by defendant that the tax-bills in 
 suit were issued in violation of that section of the Con- 
 stitution which declares 'That private property shall 
 not be taken or damaged for public use without just 
 .compensation. Such coinpensation shall be ascertained 
 by a jury or board of commissioners of not less than 
 three freeholders, in such manner as may be prescribed 
 
 (169)
 
 170 Law of Local Taxation. [Chap. 8 
 
 by law; and until the same shall be paid to the owner 
 or into court for the owner the property shall not be 
 disturbed.' [Const. 1875, art. 2, sec. 21.] 
 
 "Looking at this defense from the most favorable 
 standpoint it is evident it is untenable. The section of 
 the Constitution just quoted refers to, and is intended 
 to regulate the exercise of the right of eminent domain, 
 whereas special assessments for local improvements, 
 such as the tax-bills before us, are referable to and sus- 
 tainable under the taxing power. This distinction is 
 well recognized here and elsewhere in the United 
 States. [Garrett v. St. Louis (A. D. 1857), 25 Mo. 505 ; 
 Lewis on Eminent Domain, sec. 5.] " 
 
 In the Constitution of Missouri, framed ''at the 
 town of St. Louis on the nineteenth day of July, in the 
 year of our Lord one thousand eight hundred and twen- 
 ty, and of the independence of the United States of 
 America the forty-fifth," occurs in article 13, subdivis- 
 ion 5, this language. ''And that no private property 
 ought to be taken or applied to public use without just 
 compensation." 
 
 In St. Louis V. Peter Gurno, 12 Mo. 414, an action 
 on the case for damages to Mr. Gurno 's property in 
 St. Louis by reason of grading and paving the street in 
 front of his property, the report says: "The jury 
 found the defendant guilty and assessed the damages 
 at $1,675" (the City of St. Louis being defendant be- 
 low, but plaintiff in error above). This damage ap- 
 pears to have been done in 1843 and the case deter- 
 mined in the Supreme Court of Missouri in 1849. Here 
 were damages to the amount found. And yet plain- 
 tiff could not recover. Two years later Taylor v. St. 
 Louis was decided by the same court (14 Mo. 20). No 
 damages were found by court or jury. The court in- 
 structed the jury that "Any injury to adjoining prop- 
 erty caused by grading the same in a skillful and prop-
 
 Chap. 8] Changes in Judicial Rulings. 171 
 
 er inaniior, is not an appropriation of i)rivate property 
 for which the owner of said adjoining property can re- 
 cover in an action against the city" (p. 21-22). 
 Say the court, p. 24 : 
 
 '*To grade a street or alley already dedicated to 
 public use, is not an exercise of eminent domain so as 
 to require compensation. It is not appropriating pri- 
 vate property to public use, hut simply an exercise of 
 power over uhat is already public property. The dam- 
 age resulting by causing- the i)laintiffs to rebuild or 
 prop up their falling walls is consequential and . . . 
 the city is not responsible." But in all these cases the 
 property was damaged. 
 
 The constitutional provision now is that private 
 property shall not be taken or damaged. 
 
 "The constitutional provision quoted is intended 
 to regulate the exercise of the right of eminent do- 
 main," say the court, while the evident idea intended 
 to be conveyed is that it is limited — this constitutional 
 provision is limited to taking private property for pub- 
 lic use by the exercise of the right of eminent domain 
 or damaging private property for public use in the ex- 
 ercise of the right of eminent domain; in either case 
 there must be just compensation. 
 
 Private property may be taken for public use, or 
 it mjay be damaged for public use in the exercise of 
 any governmental power, either legislative, executive 
 or judicial, other than that of eminent domain, and the 
 owner of the ]u-o]ierty so taken or damaged is remedi- 
 less so far as getting "just compensation" for either 
 taking his property or damaging it. The constitutional 
 provision quoted is certainly intended to regulate the 
 exercise of the right of eminent domain, but that is not 
 its only purpose. 
 
 Here a street is graded and abutting property is 
 damaged. When the city passed the ordinance to grade 
 and graded this street, it did not exercise the right of
 
 172 Law of Local Taxation. [Chap. 8 
 
 eminent domain as then generally understood by 
 Bench and Bar. 
 
 It is said that ''special assessments for local im- 
 provements are referable to and sustainable under the 
 taxing power" (if sustainable at all). 
 
 In Wells V. Weston, 22 Mo. 384, it was the taxing 
 power that took Wells' land contrary to or in violation 
 of the Constitution. 
 
 In St. Charles v. Nolle, 51 Mo. 124, it was the tax- 
 ing power that took private property for private use 
 under the form of an exaction of a license tax. 
 
 In Toivn of Cameron v. Stephenson, 69 Mo. 372, at 
 378, the taxing power made the exaction and the Con- 
 stitution rendered the act void as taking private prop- 
 erty for private use. 
 
 In City of St. Louis to use v. Allen, 53 Mo. 44, the 
 tax-law was constitutionally invalid as taking private 
 property for public use without just comipensation. 
 
 In Higgins v. Ausmus, 77 Mo. 351, Mr. Higgins' 
 stoves were taken for a local sidewalk tax. The tax-law 
 was invalid as taking his j^rivate property (his stoves) 
 for public use without just compensation. 
 
 In Pleasant Hill v. Dasher, 120 Mo. 675, the local 
 tax-law was held invalid as taking private property for 
 public use without just compensation. 
 
 "If the state government possessed no authority 
 over private property except that of taking it for the 
 public use upon rendering the owner a just compensa- 
 tion, it would seem that, under this provision, the own- 
 er would be entitled to the full money value of his prop- 
 erty without any deduction" (25 Mo. loc. cit. 263). 
 
 "This law (road law of 1845) is, indeed, nothing 
 more in effect than the exercise of both powers of gov- 
 ernment in the same breath— that of taking the land by 
 the right of eminent domain, and of requiring, under 
 the taxing power, the adjacent landowners to contrib-
 
 Chap. 8] Changes in Judicial Rulings. 173 
 
 ute to the cost of it in ])roi)ortion to the benefit each 
 will derive from the road" (25 ]\[o. loc. cit. 264). 
 
 "It is evident that the advantages or benefits must 
 have some limits" (25 Mo. loc. cit. 512). These ))ene- 
 fits or advantages are limited by the Constitution to 
 such as are special, peculiar, exceptive, not enjoyed in 
 common with other property in the vicinity. 
 
 Although the last two cases involved the power of 
 eminent domain and the tax-power, yet it was the tax 
 power that took private property for public use with- 
 out just compensation. 
 
 Continuing in Keith v. Bingham, the court, at page 
 306, say: 
 
 "If the taxing power has been called into play in 
 the mode required by law [We suppose the court refer 
 to a law in consonance with the Constitution] for 
 the purpose of paying for a local improvement, 
 such as paving or grading a street, it is no defense to 
 a bill issued therefor to say, as is said here, that the 
 street or the improvement damaged and did not benefit 
 the property, though if such were the fact, the party 
 injured might have his action (on a proper showing) 
 under the Constitution for such injury. [Householder 
 V. City of Kansas, 83 Mo. 488.] If the city had invoked 
 the power of eminent domain unlawfully in the premi- 
 ses [But did the city invoke the power of eminent do- 
 main when it graded May street in Kansas City?] it 
 could be held accountable therefor, but that would not 
 interfere with the special tax-bill for an improvement 
 regularly niade under the taxing power. The right of 
 action which a ])erson might thus have against the mu- 
 nicipality would constitute no just defense to the claim 
 of the contractor who had made the improvement and 
 to whom, under the law in question here, the tax as- 
 sessment is payable." 
 
 The city did not grade this street (regularly or ir-
 
 174 Law of Local Taxation. [Chap. 8 
 
 regularly) under the tax power. The court seem to be of 
 the opinion that there may be an irregular exercise of 
 the power of eminent domain when property is taken 
 or damaged without payment in advance. The owner 
 ought to be paid for his land, and payment should be 
 made in advance. The writer is not disposed to deny 
 that the city acts irregularly when it takes or damages 
 private property for public use without payment in ad- 
 vance. The writer is not disposed to deny that the con- 
 duct of the horse thief is irregular. The court ought to 
 recollect that the chief difficulty with the horse thief 
 is his failure to pay the owner for the horse he stole 
 from him. The court in quoting the Constitution of 
 Missouri inadvertently omitted a portion of the provis- 
 ion in section 21 of art. 2: ''And until the same [just 
 compensation] shall be paid to the owner or into court 
 for the owner the property shall not be disturbed;" the 
 part omitted is, "or the proprietary rights of the owner 
 divested." 
 
 The city charter provided for these tax-bills for 
 grading streets ; they were made liens on the abutting 
 lots. In the event of failure to pay the tax-bills, the 
 holder may sue the landowner, and under this decision 
 it is no defense that the "improvement damaged and 
 did not benefit the property. ' ' Then a judgment is ren- 
 dered against the owner (not in personam) for the sale 
 of the land (damaged and not benefited) to pay the cost 
 of doing the work which damaged and did not benefit it. 
 An execution is provided for by this statute and also 
 a sheriff's deed conveying to the purchaser the title of 
 the parties to the suit. 
 
 Are the proprietary rights of the owner therein 
 then divested I The grading of a street here "damaged 
 and did not benefit" the defendant's lot. Grading a 
 street is not exercising the power of eminent domain. 
 Grading a street is not an exercise of the power of tax-
 
 Chap. 8] CnAN(;i:s I.N JlDKIAL KULINGS. 175 
 
 ation. The iiiiprovemeiit "damaged and did not bene- 
 fit the property" taxed. This was the defense de- 
 murred to. The demurrer admits that 'Hhe improve- 
 ment damaged and did not benefit" the property. The 
 city charter and ordinance required a contract to be 
 entered into for doing this grading, to be let to the low- 
 est and best bidder. Here, then, is a contract to make 
 an improvement (grading a street) which damaged and 
 did not benefit defendant's land. No tax-bill is valid 
 or of any force without this contract so provided for 
 by this statute (city charter). Here, then, is this con- 
 tract to grade this street (an improvement which dam- 
 ages and does not benefit this property) and thereby 
 damage defendant's pro])erty— a contract to do that 
 which the Constitution says shall not be done. The city 
 enters into a contract to violate the Constitution. The 
 contractor makes his agreement to violate the Consti- 
 tution. 
 
 This Constitution was thought to mean that it pre- 
 vented, first, taking private property, or second, dam- 
 aging private property for public use without just com- 
 pensation. This com^Densation for damaging as well 
 as taking must be ascertained by commissioners or a 
 jury. This just compensation for damaging as well as 
 taking must be paid to the owner or into court for the 
 owner before the owner's proprietaiy rights are di- 
 vested. Here Bingham's property is damaged by this 
 grading of the street. These damages are not ascer- 
 tained by a jury or commissioners; they are not paid 
 to the owner or into court for the owner and the court 
 proceeds under this statute to enter judgment against 
 the damaged lot, sell it and make a sheriff's deed there- 
 for, and thereby divest defendant of his title to the 
 damaged lot to pay the contract price for doing the 
 damage in the interest of the public. The contractor 
 makes a contract to grade the street, thereby damag-
 
 176 Law of Local Taxation. [Chap. 8 
 
 ing private property for public use. ' ' Just compensa- 
 tion" for such damage has not been made and is not 
 expected to be made. By the Constitution the city is 
 liable for damaging private property for public use 
 just as much as it is liable for taking private property 
 for public use. The contractor who thus helps the city 
 to accomplish this constitutional wrong is not only ex- 
 empt from all charges for damaging this property, but 
 he has a legal claim to sell the abutting damaged land 
 to pay his charges for doing this wrong — for violating 
 the Constitution. 
 
 "Much latitude of discretion in exercising that 
 power belongs to the legislative department, and the 
 courts will not interfere with it unless there is some 
 manifest abuse which is not claimed in this case." [S. 
 C, 100 Mo. at 307.] 
 
 How much latitude of discretion are the courts to 
 allow to the Legislature? The existence of this power 
 does not depend on the extent to which it miay be exer- 
 cised. If the power exist at all, it must be exercised at 
 the will of those in whose hands it may be placed. 
 Courts ought not to be driven ''to the perplexing in- 
 quiry, so unfit for the judicial department, what degree 
 of taxation is the legitimate use and what degree miay 
 amount to the abuse of the power. ' ' The power to with- 
 hold any portion of the "just compensation" for tak- 
 ing or damaging private property for public use, was 
 never given expressly or by implication by wa}' of tax- 
 ation or otherwise, except in case of the special, pecu- 
 liar, exceptive benefit which may be a part of the "just 
 compensation" of the Constitution. A man may be 
 paid in tenefits as well as in cash. But the Legisla- 
 ture never had power to determine what is just com- 
 pensation for land taken or damaged for public use, 
 nor what part, if any, of this just compensation may 
 be in benefits. It is no part of the legislative function 
 of our government, State or National.
 
 Chap. 8] Changes in Judicial Rulings. 177 
 
 To grade a street and thereby damjage private 
 property for public use without just coiinpensatioii for 
 such damage, sell the damaged property to pay the cost 
 of doing the damage, and l)y deed pass away the title 
 of the owner is, according to this case, no abuse of this 
 power (whatever it may be called). As a matter of idle 
 curiosity, I wonder what would be an abuse of this 
 power. 
 
 A power that does not exist can not l>e abused. 
 Here is a positive constitutional prohibition. There is 
 no express authority given to \evj local taxes to pay 
 for doing acts expressly forbidden by the Constitution. 
 It is certainly not the intention of that Constitution 
 that such power of local taxation should be implied. 
 
 The grading of this street did not benefit Bing- 
 ham's property, says his answer, and the demurrer ad- 
 mits it. The cost of the grading may equal or exceed the 
 value of the lot. The public grade this street and take 
 the abutting property to pay for it. Judgment is render- 
 ed against the lot for the grading (not a benefit to the 
 lot but a positive injury), execution issues, the lot is 
 sold and a sheriff's deed is made convejang the title. 
 The owner lost his lot. What did he get for it ? The lot 
 was not benefited. The case even admits it was dam- 
 aged. AA^ij^ not build a courthouse in the same way? 
 Or a jail, or other improvement, such as a poorhouse? 
 If the law had caused the sale of Bingham's St. Louis 
 lot not damaged it would have been better. The van- 
 dalism of the act would have been lost. 
 
 In this case the contest arose under the Constitu- 
 tion of ^Missouri of 1875, providing that private pro]> 
 erty shall not be taken or damaged for public use with- 
 out just compensation. If the land com?}Wsing the 
 street had belonged to Mr. Bingham as part of the lot 
 taxed in the above case, and there had been a condem- 
 nation, then first, if the street had been a damage to Mr, 
 
 12
 
 178 L-\w OF Local Taxation. [Chap. 8 
 
 Bingham's remaining property, certainly that remain- 
 ing property could not be taxed locally; second, if the 
 street had been no benefit to the remaining property, it 
 could not have been taxed locally ; third, if the condem- 
 nation jury had found— if it was a fact (as admitted by 
 this demurrer)— that the remaining portion of Bing- 
 ham's lot was benefited generally in common with all 
 other property in the vicinity, then the tax would be 
 unconstitutional according to the repeated adjudica- 
 tions of the Supreme Court of Missouri. Nobody ever 
 dreamed that this tax could be constitutionally laid if 
 there was in fact a damage while a general benefit was 
 insufficient and rendered the tax unconstitutional. 
 
 If the general benefit be wanting ; if the special 
 benefit be wanting ; if in their stead a damage exists, 
 the tax imiDosed would have been unconstitutional. 
 This was the Constitution of Missouri prior to 1875 as 
 interpreted by her Supreme Court. Now the Constitu- 
 tion is changed. Private property can not be taken or 
 damaged for public use without just compensation. 
 Private property can now no more be damaged for pub- 
 lic use without just compensation than it can now or 
 could before 1875 be taken for public use without just 
 compensation. The owner shall not be disturbed; his 
 proprietary rights shall not be divested. 
 
 In Keith v. Bingham, supra, the Missouri Su- 
 preme Court say : 
 
 "Much latitude of discretion in exercising that 
 power [local taxation] belongs to the Legislature, and 
 the courts will not interfere with it unless there is some 
 manifest abuse," etc. 
 
 This means that the courts may interfere with the 
 exercise of the legislative power, a power lodged in the 
 legislative department of the government under the 
 Constitution. The courts may judicially veto legisla- 
 tive acts enacted in strict confonnity to the Constitu-
 
 Chap. 8] Changes in Judicial Rulings. 179 
 
 tion of the State and the Constitution of the United 
 States. 
 
 In tlie exercise of this granted power "Much lati- 
 tude of discretion is allowed." How much? Who shall 
 determine this question of discretion in the exercise by 
 the Legislature of its constitutional powers? Here we 
 are, "Driven to the perplexing inquiry so unfit for the 
 judicial de])artment, what degree of taxation is the 
 legitimate use and what degree may amount to the abuse 
 of power." [State v. North and Scott, 27 Mo. 464 (A. 
 D. 1858), at 479 bottom.] 
 
 "It is obvious that the same power which imposes 
 a light duty can imi)ose a very heavy one which amounts 
 to a prohibition. Questions of power do not depend on 
 the degree to ivhich it may be exercised. If it may be 
 exercised at all it must be exercised at the will of those 
 in whose hands it is placed. The question is, where 
 does the power reside, not how far it will probably be 
 abused! and the greater or less extent in which it may 
 be exercised does not enter into the inquiry concerning 
 its existence. AVhen we are imiuiring whether a partic- 
 ular act is within this prohibition the question is, not 
 whether the State may so legislate as to hurt itself, but 
 whether the act is within the words and mischief of the 
 prohibitory clause." [Brown v. Maryland, 12 AMieaton 
 439, quoted in State v. North and Scott, 27 Mo. 464, at 
 480.] 
 
 The same power which imposes a very light local 
 tax may impose a very heavy local tax. 
 
 Here are two express limitations on the ]^ower of 
 the State: First private property shall not be taken 
 for public use without just com]iensation ; second, pri- 
 vate property shall not be damaged for public use with- 
 out just compensation. Of what avail is this express 
 limitation of ]iower if the implied power to tax can nul- 
 lify it? The State takes or damages the citizen's prop-
 
 180 Law op Local Taxation. [Chap. 8 
 
 erty with one hand and with the other hand takes by 
 local taxation that citizen's money to pay for it. The 
 State freely gives this just compensation for damaging 
 or taking and then pays the owner by taxing his just 
 comj^ensation one hundred per cent. The courts imply 
 a power in one part of the Constitution which nullifies 
 an express limitation or restriction in another part of 
 that Constitution. 
 
 With the left hand of eminent domain the State de- 
 livers to the owner of real estate taken or damaged 
 "just comii^ensation " for such land taken or damaged 
 for public use, and with the right hand of local taxation 
 may take the whole sum to pay it. The State can not 
 take the land under the power of eminent domain with- 
 out paying value for it, but the State can take the whole 
 value under the power of taxation even if the work for 
 which the tax is levied be a damage. Such is the ex- 
 traordinary power of this "constitutional road agent." 
 Say the Supreme Court of Missouri in City of St. Louis 
 to y^e V. Allen, 53 Mo. 44, at 55: 
 
 ' '■ It may be said that the property may not be suffi- 
 cient to pay the assessment ; it is a sufficient answer to 
 this to say, that it will not be presmned, that it was 
 ever intended that a corporation in the exercise of this 
 liigh prerogative should absorb the whole value of a 
 person's property and then come on him for the de- 
 ficit. The very idea of such an assumption on the part 
 of either the city, or the state Legislature, would be 
 sufficient to startle one who had even the most crude 
 notion of the objects and purposes of a just or enlight- 
 ened government. The idea that a city could improve 
 a street, and assess the property benefited thereby 
 [how about the property damaged for which damage 
 no redress could be had at this time (A. D. 1873)] and 
 sell the entire property, and then go on the owner of 
 the property, who may reside out of the city and sell
 
 Chap. 8] Changes in Judicial Rulings. 181 
 
 his property there to pay the balance of the assessment, 
 and this all in consideration of the benefit [notice the 
 benefit is assumed not i)roved] conferred on his proi> 
 erty, which was already sold, would seem in its results 
 like taking the property of the owner and converting it 
 to public use without any just compensation. I do not 
 believe that by this indirection you can do that which is 
 forbidden by the Constitution if directly done. If a 
 personal judgment can be rendered in such case, all 
 this may happen. It is true, it is not likely to luippen, 
 but the fact that it may possibly happen is enough to 
 condemn the laic." 
 
 It may possibly happen that abutting property will 
 be damaged by work done on the street in front of it 
 and then the vandalism is apparent in selling damaged 
 abutting i)roi)erty to pay the cost of doing the damage 
 in place of selling distant property not damaged by the 
 work. 
 
 The reader will note that this first case is one for 
 grading a street; a local tax for such grading. ''The 
 damage resulting, by causing the plaintiffs to rebuild 
 or prop up their falling walls is consequential, and as 
 it is a consequence of the exercise of a power granted 
 by the State to municipal corporations, for public pur- 
 poses, and the power has not been abused, but skillfully 
 and discreetly exercised, the city authorities are not re- 
 sponsible." [Taylor V. St. Louis, U Mo. 20, at 24.] 
 ''The damage resulting," say the court. Then there 
 ivas damage. Taylor's property was damlaged. But it 
 was ''damnum obsque injuria," still it was ''danmum." 
 That damage is forbidden now; it was not then. This 
 was the veiy thing the Constitution of 1875 aimed 
 to prevent. Streets were graded and houses left high 
 up in the air and all access to the street cut off, a re- 
 sult absolutely ruinous to the landowner. He could 
 not get to or from his house. He had a property right
 
 182 Law of Local Taxation. [Chap. 8 
 
 in the street different from the public right, the right 
 of ingress and egress to and from his own house. This 
 riglit was injured or destroyed without payment of 
 anything for it. His property was seriously damaged. 
 TMiat is a house in town worth if you cannot get to it? 
 The provision of the Missouri Constitution of 
 1875 is, that ]irivate property shall neither be taken nor 
 damaged for public use without just compensation. If 
 a city can grade a street and leave a house on abutting 
 land high up in the air and cut off all means of ingress 
 and egress and thereby damage the property— if a city 
 can do this and not be guilty of a violation of this con- 
 stitutional provision as to damaging private property 
 for public use, the writer is at a loss to know where 
 to search for such a case. The Topeka bonds to aid 
 manufacturers in Topeka {Loan Association v. To- 
 peka) were without authority because the power to tax 
 was wanting. If Topeka made any bond then she must 
 pay it. To pay the bond she must tax. If Topeka taxes 
 her people it must be for a public purpose. Inducing 
 manufacturers to come to Topeka and there establish 
 their plants by voting bonds to them is not within the 
 bounds of legislative power. But according to Keith 
 V. Bingham, 100 Mo. 300, a tax to pay these bonds 
 would have been valid, and would have been enforced. 
 An implied want of authority to tax defeated the To- 
 peka bonds. An express want of authority to tax, a 
 prohibition to grade the street, sustained the tax in 
 Keith V. Bingham. To put the case on a bare want of 
 authority is too weak. The city made a contract pro- 
 hibited by the Constitution, viz., a contract to grade 
 this street which the record admits ''damaged and did 
 not benefit" Bingham's property, and the answer de- 
 murred to states that no compensation for such danii- 
 ages were ever paid to Bingham or any one. ''No com- 
 pensation was made or tendered to or paid into court
 
 Cha]). 8] Changes in Judicial Rulings. 183 
 
 for any person as the owner of said lot on account of 
 said damages" (100 Mo. at 301). Here the city made 
 a contract to grade this street and to pay for it. How 
 it was to be paid for is immaterial. The contract was 
 to pay. Here is a positive constitutional prohibition 
 against doing the thing contracted to l)e done. Yet the 
 city levies the special tax to pay for doing this prohib- 
 ited work, and here the city enforces collection of the 
 tax. 
 
 Suppose Topeka had levied a tax to pay those 
 bonds to aid private enterprises, looking at the reasons 
 given and the decision and opinion rendered, would the 
 court have enforced the tax while it, the couii;, denied 
 judgment on the bonds? Cities and towns are prohibit- 
 ed from becoming indebted to an amount exceeding five 
 per cent of the assessed value of the property of the 
 city or town. Can a cit>' or town issue bonds to the ex- 
 tent of fifty per cent of its taxable property and then 
 levy a tax to pay such bonds and enforce the tax while 
 the bonds to be paid by such tax are prohibited by the 
 Constitution ? The court use this language, page 306 : 
 
 "If the taxing power has been called into play in 
 the mode required by law for the purpose of paying for 
 a local improvement, such as paving or grading a street 
 [Here it was grading], it is no defense to a bill 
 issued therefor to say as is said here that the street or 
 improvement damaged and did not benefit the property 
 though, if such were the fact the party injured might 
 have his action (on a proper showing) under the Con- 
 stitution for such injury. ' ' 
 
 The party injured may have his action for the in- 
 juiy. But here the injury was done; an injury forbid- 
 den by the Constitution. This injury was done by con- 
 tract and now the proposition is to tax the injured 
 property to pay the cost of doing the injury to it and 
 call on the courts to enforce the tax against the injured
 
 184 Law of Local Taxation. [Chap. 8 
 
 property. Here the street in front of a home is graded 
 and the home is left high up in the air and wholly inac- 
 cessible; the property is damaged thousands of dol- 
 lars; time and labor were involved in grading this 
 street ; now the proposal is to tax this injured property 
 to pay the cost of doing this forbidden damage. The 
 injury is admitted and the tax to pay the cost of doing 
 it is enforced. The injury to the property is forbidden 
 by the Constitution, Whoever owns this injured prop- 
 erty must pay the cost of the fiendish vandalism that 
 did the injury. This tax was originally called a tax on 
 benefits, or for benefits ; now it is a tax on the injured 
 property for the injury done to the injured property- 
 owner. At one time a tax to pay the cost of a public 
 improvement that was a general benefit to the property 
 was unconstitutional ; now it is constitutional if it is a 
 tax for doing a w*ork which ruined the property. The 
 injured property is taxed to pay some one for doing 
 that injury. Municipal bonds were valid only in the 
 hands of a purchaser for value without notice. The 
 local taxbill is valid in the hands of the original wrong- 
 doer. 
 
 The defense to which a demurrer was sustained is 
 in the words and figures following, \dz. : 
 
 ''Defendant for a third defense to the tax-bills, 
 sued upon, states that the lot described in plaintiff's 
 petition is now and was at all the times stated in plain- 
 tiff ^s petition, private property. That the grading 
 mentioned in plaintiff's petition was done for public 
 use and damaged and did not benefit said lot. That no 
 compensation was made or tendered to or paid into 
 court for any person as the owner of said lot on ac- 
 count of such damages. Wherefore the defendant asks 
 judgment." [lb., 301, at bottom.] 
 
 The court at page 307 say as to this defense : 
 
 "The third defense in the answer is otherwise in- 
 sufficient. It does not allege that the defendant was the
 
 Chap. 8] Changes in Judicial Rulings. 185 
 
 owner of the land when it was damaged as claimed. In 
 the absence of such allegation no defense would exist, 
 even under defendant's theory of the purport of the 
 constitutional provision relied on. We have recently 
 held that such damages are a personal claim of the 
 owner of the property at flie time of the injury and 
 that they do not run with the land. [Hilton v. St. 
 Louis, 99 Mo. 199.] Hence, in any view taken of the 
 answer, the ruling of the trial court on the denmrrer to 
 it was correct." 
 
 The court, it seems to the writer, erred in consid- 
 ering the defense as in the nature of a counterclaim or 
 a confession and avoidance whereas it is in fact in the 
 nature of a traverse, a denial of the validity of the tax 
 on the ground that it is illegal — unconstitutional and 
 the facts are set out constituting its illegality— its un- 
 constitutionality. It is on its face intended as a denial 
 of all authority for the tax in suit, rather a prohibition 
 to act and then tax for the prohibited act. If it were 
 intended as in the nature of a connterclaim for damages 
 for injuries to this property, then the defense is cer- 
 tainly defective in all respects indicated in the opinion 
 and in many more. If the property injured did not be- 
 long to the defendant at the time of the injury, and if 
 such damages were not assigned to defendant, then cer- 
 tainly such defendant would not own such damages or 
 ''just compensation," and for that reason could not 
 get judgment for what did not belong to him. De- 
 fendant could not recover from the plaintiff ''just com- 
 pensation" for damaging a stranger's land, or land not 
 his own. 
 
 Again, the injuries alleged are not alleged to have 
 been done by the plaintiff, and hence, a counterclaim 
 against him could not be sustained. If it were a coun- 
 terclaim for injuries done in a transaction out of which 
 the tax-bill sued on originated, and if the plaintiff
 
 186 Law of Local Taxation. [Chap. 8 
 
 were liable for the injuries complained of, the amount 
 of damages is not stated. The court certainly were not 
 bound to render judgment against the plaintiff when 
 the counterclaim did not ask it or state the amount of 
 the damages, or ask judgment against any one for any 
 amount. 
 
 The language of the court assumes this to be the 
 constitutional law of the State. Mr. Jones owns a lot 
 abutting on the street. The street is graded and Jones' 
 house is left high up in the air; all access to it is cut 
 off. His property is damaged to the extent of eighty 
 per cent of its value before the grading. Jones, with- 
 out paying for the grading, sells the lot to Bingham. 
 Damages resulting from grading are not sold to Bing- 
 ham. Facts like these are admitted by the demurrer. 
 ' ' The grading damaged and did not benefit the said lot. 
 That no compensation was made or tendered to or paid 
 into court for any person as the owner of said lot on 
 account of said damages," either Jones or Bingham. 
 The property was damaged for public use; the owner 
 got nothing for such damaging and then the damaged 
 lot is taxed to pay the damage and that tax to pay that 
 damage which the Constitution prohibited — that tax is 
 enforced in this suit. A power is implied (certainly 
 not conferred in terms) in the Constitution to levy a 
 local tax for an act absolutely prohibited. The Con- 
 stitution says that lot shall niot be damaged for public 
 use without just compensation ; that just compensation 
 shall be ascertained by a jury or commissioners. Un- 
 til this just compensation shall be paid to the owner or 
 into court for the owner, the owner shall not be dis- 
 turbed. But here he was disturljed ; the street in front 
 of his house was graded or cut down; his house was 
 left high up in the air. You have disturbed that owner 
 when the Constitution said you should not. Can you 
 tax locally the damaged landowner or his lot and house
 
 Chap. 8] Changes in Judicial Rulings. 187 
 
 to pay for doing this forbidden act ? If the lot had l)een 
 taken for public use, could the lot thus taken or other 
 lots of the owner be taxed to pay for the forbidden tak- 
 ing? No person shall be deprived of life, liberty or 
 property without process of law. A i)erson is deprived 
 of property without due process of law; can you by im- 
 plication tax locally his property to pay for the forbid- 
 den act! 
 
 In Loan Association v. Topeka, 20 Wall. 655, and 
 in Cole v. LaGrange, 113 U. S. 1, there was a mere want 
 of authority to tax. Here is a constitutional prohibi- 
 tion. The property was damaged whether Bingham 
 owned it or some one else owned it. The public pro- 
 ceeded to disturb the owner of that property, whether 
 Bingham or Jones can make no difference. The Consti- 
 tution of the State prohibited that disturbance. Can 
 the State tax the damaged property for the cost of the 
 damage when the Constitution prohibits the damage in 
 clear express terms? The property-owner shall not be 
 disturbed. The city disturbs the property-owner and 
 taxes him to pay for the prohibited disturbance. The 
 plea was that of the want of authority. The decision 
 was that the city had authority to tax locally for doing 
 what the Constitution prohibited it from doing and the 
 tax was enforced. 
 
 The reader will notice that the clause of the Con- 
 stitution in question is restrictive in character. It for- 
 bids certain things to be done. These restrictions— 
 these limitations on the powers of the government — 
 need no legislation to enforce them. The courts have 
 considered that question under the present Constitu- 
 tion of Missouri. The first case to be noticed is that of 
 the St. Joseph Board of Public Schools v. Patton et al., 
 62 Mo. 444, et seq., decided at May term, 1876, under 
 the Constitution adopted November 30, 1875. 
 
 The Board of Public Schools under acts of March
 
 188 Law of Local. Taxation. [Chap. 8 
 
 3, 1866, and March 20, 1872 (its incoi-poration acts), 
 had power to make estimates for salaries of teachers 
 and expenses of the schools and for building school- 
 houses, and the board were required to report this 
 amount to the county court, and thereupon the court 
 were required to make such levy on all taxable property 
 in the district, but the levy could not exceed seven mills 
 on the dollar. The Constitution had gone into effect 
 November 30, 1875, and under its provisions only four 
 mills could be levied, except that this rate might be in- 
 creased to sixty-five cents on the $100 valuation by a 
 vote of the taxpayers, under acts of the Legislature to 
 be passed. The Legislature had passed no law on the 
 subject. The county court levied only four mills, the 
 constitutional limit ; the court refused to make any fur- 
 ther le\^ and the board brought mandamus proceed- 
 ings against the judges of the county court asking them 
 to be compelled to levy seven mills— three mills more 
 than the Constitution permitted. The court at page 
 448, et seq., say : 
 
 ''In the first part of section 10, the constitutional 
 rates of taxation for county, city, town and school pur- 
 poses are fixed. The provisions above quoted allow 
 certain modifications of these rates. The question then 
 is, must the rates of taxation fijxed in the Constitution, 
 when accompanied with provisions in that instrument 
 authorizing their modification, await the action of the 
 Legislature to provide the means of obtaining such 
 modification before the rates themselves go into opera- 
 tion? 
 
 "The fifteenth section of the schedule to the Con- 
 stitution declares that 'The General Assembly shall 
 pass all such laws as may be necessary to carry this 
 Constitution into full effect. ' There is no way of enforc- 
 ing this injunction on the Legislature. Under our sys- 
 tem of government there is no power to compel the leg-
 
 Chap. 8] Changes in Judicial Rulings. 189 
 
 islative department of government to make laws. Con- 
 stitutions may restrict legislative powers, and declare 
 what laws shall be valid ; but from the very nature of 
 legislative power, its exercise in a particular case must 
 depend upon the volition of the Legislature. Respon- 
 sibility to constituency, and a sense of public duty, are 
 the only incentives which can prompt legislative ac- 
 tion. 
 
 "In the first Constitution of this State, adopted on 
 its admission into the Union, and in the succeeding one, 
 adopted in 1865, the General Assembly was directed to 
 provide by law a mode of suing the State ; yet it is well 
 known that for upwards of fifty years this mandate was 
 disregarded, and no one ever suggested that it could be 
 enforced, unless it was the pleasure of the Legislature 
 that it should be. 
 
 ** If, then, the rates of taxation declared in the 
 eleventh and twelfth sections of the tenth article of the 
 Constitution depend for their enforcement upon the leg- 
 islative department of the government, they are mere 
 abstractions, mere declarations of the opinion of the 
 convention which framed the Constitution, entitled of 
 course to such weight as the opinions of so able and re- 
 spectable body necessarily possesses, but effecting no 
 constitutional barriers against legislative extrava- 
 gance or constitutional assurances of retrenchment in 
 public expenditures and taxation consequent thereon. 
 
 ''The convention were doubtless aware of their in- 
 ability to coerce the legislative department into the 
 enactment of laws, which in the opinion of the conven- 
 tion were desirable, and therefore, declared certain 
 rates and limits of taxation as the constitutional lim- 
 its and rates, providing at the same time a mode by 
 which the Legislature and the people might exceed 
 them if they saw fit. Any construction, whkh snakes 
 these constitutional restrictions dependent on legisJa-
 
 190 Law of Local Taxation. [Chap. 8 
 
 tive action, destroys their vitality. The Legislature may 
 Dot see proper to pass any laws affording an opix)r- 
 tiinity to the voters to increase the school tax to one- 
 per cent in cities and towns, and .65 of one per cent 
 in county school districts; and if it is conceded that 
 the restriction to four mills on the dollar needs legisla- 
 tion to enforce it, because the process by which this rate 
 of taxation may be increased does, then in the absence 
 of any legislation there is no limit and these provisions 
 of the Constitution are lifeless. After the 1st of July, 
 1877, the laws inconsistent with them are repealed ; but 
 if no legislation occurs, and the position that legisla- 
 tion is needed to enforce the restriction is a correct one, 
 then both the restriction and proviso are inoperative, 
 and the Legislature may regulate the rate of taxation 
 at their pleasure. 
 
 ''The Legislature already possessed the power of 
 limiting taxation to the maximum adopted in the Con- 
 stitution; but it was not the object or intention of the 
 framers of the Constitution to leave these limits to leg- 
 islative discretion; but to declare constitutional limits 
 which, until removed in the mode i)ointed out in the 
 Constitution, should prevail on its adoption. If the 
 Legislature and, the people desire to increase this rate, 
 a mode is provided by which it may be done, but until 
 this is done the constitutional limit prevails. 
 
 ' ' The provision of the Constitution required no 
 legislation to enforce it, and therefore on the adoption 
 of the Constitution went into effect. The proviso by 
 which a mode was appointed to alter it to a certain ex- 
 tent, and which depended on legislative action, does 
 not preveait the restriction from going into effect. ' ' 
 
 The writer is aware of the numerous decisions 
 that the whole of article 10 of the Missouri Constitu- 
 tion of 1875 does not include, and was not intended to 
 include, special assessments or local taxes for work
 
 Chap. 8] Changes in Judicial Rulings. 191 
 
 done in front of the property. Tlie power is the power 
 of taxation, and it is not restricted eo nomine as taxa- 
 tion in article 10. But the question is, Should the courts 
 imply a power in the Legislature to levy a local tax on 
 injured property for doing an act (injurious to that 
 property) prohibited by the Constitution.' Here we 
 have a constitutional provision that private property 
 shall not be taken or damaged for public use without 
 just compensation. Is this a restnction in and of it- 
 self, or does it require legislation to enforce it? 
 
 In Householder v. City of Kansas, 83 Mo. 488 (A. 
 D. 1884), in rendering the opinion the court at page 
 492, bottom, say : 
 
 "Prohibitory clauses in considerations are gener- 
 ally self-enforcing; twenty sections of the second ar- 
 ticle of our Constitution, including the one under cont- 
 sideration, are prohibitory and on examination all or 
 nearly all of them will he found to effect their purpose 
 icitJwut the aid of legislation. The things therein nam- 
 ed are prohibited. A legislative enactment could not do 
 more toward the invalidation of the prohibited acts. Tt 
 might provide penalties for breaches of a prohibitory 
 constitutional provision where the Constitution itself 
 ])rovides none. For instance, no act of the Legislature 
 could make it any more illegal to take money from the 
 public treasury in aid of any church. The General As- 
 sembly might impose a penalty or other punishment for 
 the act of taking money from the public treasury in aid 
 of a church, but without any such legislation the courts 
 would, under section 7, article 2, of the Constitution, 
 hold the act illegal and the person so taking the money 
 responsible for it." But in the case under considera- 
 tion the contractor who does the damage to private 
 property, prohibited by the Constitution, is not only 
 not responsible for it as a wrongdoer, but the statute 
 gives him a lien on the injured property for his wrong-
 
 192 Law of Local Taxation. [Chap. 8 
 
 ful injurious act. For this prohibited injury the city has 
 the imi^Hed power to tax locally the injured property to 
 pay for the work and material used in doing the prohib- 
 ited injury. 
 
 Further in same case, page 494, the same court 
 say: 
 
 ''By its charter the city of Kansas has authority 
 by condemnation proceedings or otherwise to acquire 
 and hold property to be used as streets and alleys and 
 to change and alter the grades of streets. Under sec- 
 tion 21, the city can no more alter or change the grade 
 of a street to the damage of a lot abutting upon it, with- 
 out compensation to the owner, than it can take private 
 proj^erty for public use without compensation to the 
 owner. The provision in relation to the ascertainment 
 of such compensation applies equally to the taking and 
 damaging of property. Will it be contended, until the 
 Legislature shall have enacted a law prescribing the 
 mode for the ascertainment of the compensation to the 
 owner, a municipal corporation can seize and appro- 
 priate his property and that he would be without rem- 
 edy against the corporation? That a city for the pur- 
 pose of repairing its streets and bridges may enter up- 
 on the property of a citizen and cut timber and quarry 
 stone without incurring any liability whatever I Is this 
 important constitutional provision to protect the citi- 
 zen in his rights of property a dead letter or a living 
 principle at the pleasure of the Legislature^ Can the 
 Legislature by m>ere inaction nullify and set it aside?" 
 
 Private property shall not be taken for public use 
 without just compensation, is an absolute prohibition. 
 Private property shall not be damaged for public use 
 without just compensation, is likewise an absolute pro- 
 hibition. No legislation is needed to enforce either pro- 
 hibition. Until this just compensation shall be paid to 
 the owner he shall not be disturbed; his proprietary
 
 Chap. 8] Changes in Judicial Rulings. 193 
 
 rights shall not be divested. Here are positive prohibi- 
 tions; no legislation is needed to complete the prohibi- 
 tions. With this constitutional law thus laid down read 
 again the opinion in KeitJi v. Bingham, at page 306: 
 
 **If the taxing power has been called into play in 
 the mode required by law for the purpose of paying 
 for a local improvement, such as paving or grading 
 [this tax-bill was for grading May street], it is no de- 
 fense to a bill issued therefor to say, as is said here, 
 that the street or improvement damaged and did not 
 benefit the property though, if such were the fact, the 
 party injured might have his action (on a proper show- 
 ing) under the Constitution for such injury. [House- 
 holder V. City of Kansas, 83 Mo. 488.] If the city had 
 invoked the power of eminent domain unlawfully in the 
 premises it could be held accountable therefor, but 
 that would not interfere with the collection of the spec- 
 ial taxbill for an improvement regularly made under 
 the taxing power. The right of action which a person 
 might thus have would constitute no just defense to the 
 claim of the contractor who had made the improve- 
 ment, and to whom under the law here the tax assess- 
 ment is payable." 
 
 ''The nature of these special taxes has been al- 
 ready so fully explained by judicial decisions in this 
 State that little that would be new could now be add- 
 ed." Ver}^ apparently the court has said something 
 vei-y new. It is no defense that the grading damaged 
 the lot. The Constitution prohibited such grading or 
 any other act that would damage the lot. The injured 
 party has a right of action for the injury done, but he 
 is compelled by local taxation to pay the cost of such 
 injury. It is a most singular law, under a most singu- 
 lar Constitution, that compels a person to injure his 
 own property for public use or pay others for injuring 
 it. 
 
 13
 
 194 Law of Local Taxation. [Chap. 8 
 
 Here in our Constitution are certain absolute re- 
 strictions not needing legislation to enforce them: 
 First, private property shall not be damaged for public 
 use without just compensation (Bingham's private 
 property was damaged for public use without just com- 
 pensation). Second, such compensation shall be ascer- 
 tained by a jury or commissioners. That was not done. 
 If there was no law providing for jury or commission- 
 ers, still the prohibition remained absolute. The Leg- 
 islature could not repeal the law providing for condem- 
 nation cases and then take property for public use 
 without paying for it, in the face of the constitutional 
 prohibition that needs no legislation to enforce it. If 
 there were a law enacted by the Legislature by which 
 just compensation for damaging private property for 
 public use could be ascertained, the Legislature could 
 not repeal such law and then damage property at their 
 will and pleasure. Third, until this just compensation 
 for damaging private property for public use shall be 
 paid to the owner the property shall not be disturbed. 
 Here is an absolute prohibition. It don't need legisla- 
 tion to enforce it. Bingham', the owner, w*as disturbed. 
 The property was disturbed. It can not be said that 
 property which is damaged by an act is not disturbed, 
 by that act. Although damaging this property was 
 positively prohibited by the Constitution, yet it was 
 not only damaged contrary to such positive prohibition 
 not needing legislation to enforce it, but the owner of 
 that property must pay a local tax for doing the pro- 
 hibited act which occasioned that prohibited damage. 
 
 And the courts solemnly tell us that the constitu- 
 tional reason for such a tax is that it is constitutional 
 to assess the cost of this work on "henefitefr' prop- 
 erty. It must be a benefit for they can not damage it ; 
 it is against the Constitution to do so. In a state case 
 under an indictment for larceny of a horse, the plea be-
 
 Chap. 8] Changes in Judicial Rulings. 195 
 
 ing not guilty, defendant argued he could not steal a 
 horse; the law proliiljited it; the act he did was an ab- 
 solute nullity ; no defendant should be sent to the i^en- 
 itentiary for doing an act which was an absolute nul- 
 lity. That defendant should have been discharged— 
 and he certainly would have been if he had been a con- 
 tractor for city work. And not only that, the court 
 would have given him a lien on the stolen horse to pay 
 the expenses of his roguery. Taking private property 
 for public use without the owner's consent and without 
 paying for it, is just as much prohibited by the Consti- 
 tution as taking a horse for private use without the 
 owner's consent and without paying for the horse, is 
 prohibited by the statute. One is absolutely prohibited 
 by statute law; the other is absolutely prohibited by 
 the Constitution. Absolutely nothing further is need- 
 ed in either case except to steal the town lot in one case 
 and to steal the horse in the other. Damaging private 
 property for public use without the owner's consent 
 and without paying for it is just as much ]H'ohibited by 
 the Constitution as taking private property for public 
 use without the owner's consent and without paying 
 for it. 
 
 Tn the case of taking the lot for ]mblic use without 
 the owner's consent and without paying for it (stealing 
 it), the owner may maintain ejectment and thus recover 
 his taken (stolen) lot and the owner of the horse may 
 maintain replevin for his taken (stolen) horse. The 
 lot is damaged; the horse is damaged. The damaged 
 lot is charged with a lien for the cost of the damage. 
 AAHiy not charge the damaged horse with a lien for do- 
 ing that damage ? The Constitution was intended to 
 prohibit vandalism. A debt exceeding five per cent of 
 the assessed value of property is ])rohibited. Can a 
 debt of one-hundred ])er cent he created and then levy 
 a tax to ]-)ay the ]>rohibited debt? Tn the Topeka case
 
 196 Law of Local Taxation. [Chap. 8 
 
 and in the LaGrange case there was a mere lack of au- 
 thority to tax ; there was a mere lack of authority to is- 
 sue the bonds. Here the debt is prohibited. There is 
 a difference between a want of authority and a prohibi- 
 tion. 
 
 The grading was completed before the tax was lev- 
 ied. Before a street can be graded this damage must 
 be paid. The damage was complete before payment. 
 After performing this act of damage, instead of paying 
 Bingham the admitted damage, they levied a tax on his 
 propert^^ injured by this grading. The Constitution de- 
 mands that before property shall be taken or damaged, 
 just compensation shall be ascertained by commission- 
 ers or a jury and paid to the owner or into court for the 
 owner. The Constitution never contemplated that the 
 property-owner, in order to get this "just compensa- 
 tion," should be compelled to employ and pay a lawyer 
 and be at the expense and annoyance of the lawsuit to 
 get that which the Constitution provides shall first be 
 paid to him or into court for him. 
 
 In Keith v. Bingham, 100 Mo, 300, the contract to 
 grade, we presume, was in the usual form to grade a 
 l^ublic street for public use. The case admits the two 
 facts, that the grading damaged the property, and that 
 just compensation for such damaging of this property 
 for public use had never been paid to the owner or to 
 anyone. How can this contract to violate the Consti- 
 tution be valid and form the basis of a lien on real es- 
 tate and its ultimate sale to pay it? Loan office ''cer- 
 tificates" were involved in Craig v. Missouri, 4 Peters 
 410, et seq. The tax-bill should have no more validity 
 than the promissory note given in that case for ''loan 
 office certificates" received by the makers of the note 
 and the loan office certificates endorsed to others. "Is 
 the note valid of which they form the consideration," 
 asks the coprt by Marshall, C. J., rendering the major-
 
 Chap. 8] Changes in Judicial Rulings. 197 
 
 ity opinion! [-4 Peters loc. eit. -l-3(3.] May we not ask, 
 "Is this tax-bill valid, founded on this contract and do 
 ing the work under it which work damaged this land? 
 The loan office certificates did not damage the person 
 to whom they were given ; they were simply worthless. 
 Here the tax-bill is founded on a contract which causes 
 damage to the landowner— a damage forbidden by the 
 Constitution. If the work had been hanuless— no bene- 
 fit—the note would have been void, but here the tax- 
 bill is valid when the work for which it was given is a 
 damage forbidden by the Constitution. Continuing the 
 court say : 
 
 "It has been long settled, that a promise made in 
 consideration of an act which is forbidden by law is 
 void. It will not Idc questioned that an act forbidden 
 by the Constitution of the United States, which is the 
 supreme law, is against law. Now the Constitution for- 
 bids a State to 'emit bills of credit.' The loan of these 
 certificates is the very act which is forbidden. It is 
 not the making of them while they lie in the loan of- 
 fices but the issuing of them, the putting them into cir- 
 culation, which is the act of emission ; the act which is 
 forbidden by the Constitution. The consideration of 
 this note is the emiission of bills of credit by the State. 
 The veiy act which constitutes the consideration is the 
 act of emitting bills of credit, in the mode prescribed 
 by the law of Missouri, which act is prohibited by the 
 Constitution of the United States." 
 
 The consideration of the note was harmless. There 
 was no consideration, but the reader must remember 
 that these certificates did not harm the person to whom 
 they were issued. (The case is reported in 1 Mo. 452, 
 Jackson District, May term, 1824, under the title of 
 Mansker Graves and Simpson v. The State.) This 
 contract of loan and promissory note did not hann the 
 maker of the contract— the note in suit. But the grad-
 
 198 Law of Local Taxation. [Chap. 8 
 
 ing contract and its execution damaged the lot and if 
 the act had been done by the State as it well might 
 have been done, the real estate owner would be bound 
 to suffer the damage forbidden by the Constitution 
 and, in addition, he must pay the cost of doing such for- 
 bidden damage or lose his property. The courts imply 
 a ixtwer to levy a local tax to pay the cost of a forbid- 
 den act. Why can't the Legislature pass any other act 
 violating any other restriction in the Constitution and 
 then sj^ecially tax the injured person or property to 
 pay for the forbidden act? And yet this is done under 
 a Constitution which i^rohibits taking or damaging 
 private property for public use; the property shall not 
 be disturbed nor the title be divested until the money 
 is paid to the owner or into court for him. ' ' The sec- 
 tion of the Constitution just quoted refers to and is in- 
 tended to regulate the exercise of the right of eminent 
 domain." 
 
 "Is the proposition to be maintained that the Con- 
 stitution meant to prohibit names and not things? That 
 a very important act, big with great and ruinous mis- 
 chief which is expressly forbidden by words most ap- 
 propriate for its description, loaaj be performed by the 
 substitution of a name? That the Constitution, in one 
 of its most important provisions, may be openly evaded 
 by giving a new name to an old thing? We cannot 
 think so." [Marshall, C. J., in Craig v. Missouri^ 4 
 Peters, at 433.] 
 
 ''The section of the Constitution refers to the 
 power of eminent domain," says the opinion in KeAtli 
 V. Bingham. The language of the Constitution is very 
 general: ''Private property shall not be damaged for 
 public use," etc. It was the street grading which 
 damaged Bingham's property, not the tax. The grad- 
 ing would have caused the same damage if there had 
 been no special tax-bill or general tax. The tax-bill
 
 Chap. 8] Changes in Judicial Rulings. 
 
 199 
 
 did not increase or decrease tlie damage done by the 
 grading. Tiie tax-bill did not increase or decrease the 
 benefit. The city did the grading. It may have been 
 done by days' work, or the street force, or the chain 
 gang, or other involuutaiy servitude in punishment for 
 crime, or by contract to the lowest bidder. The grading 
 caused the damage. This injuiy was called, prior to 
 1875, "damnum absque injuria." It was still " d^im- 
 num." The Missouri Constitution of 1875 meant to pro- 
 hibit this "dammim." After the street was graded and 
 the damage done, the tax-bills can not be regarded as 
 an apolog)^ for the wrong done ; they cannot wipe away 
 all the tears nor assuage all the pain, nor can the tax- 
 bills convert a $2,750 damage, as ascertained by court 
 and juiy (128 Mo. 23), into a $300 benefit (67 Mo. 
 App. 205). 
 
 Continuing in Craig v. Missouri, 4 Peters 433, 
 Chief Justice Marshall, rendering the opinion of the 
 Supreme Court of the United States, says : 
 
 ' ' But it is contended that though these certificates 
 should be deemed bills of credit, according to the com- 
 mon acceptation of the term, they are not so in the 
 sense of the Constitution, because they are not made a 
 legal tender. The Constitution furnishes no counte- 
 nance to this distinction. The prohibition is general. It 
 extends to all bills of credit, not to bills of a particular 
 description. That tribunal must be bold indeed, which, 
 without the aid of other explanatory words, could ven- 
 ture on this construction. It is the less admissible in 
 this case, because the same clause of the Constitution 
 contains a substantive prohibition to the enactment of 
 tender laws. The Constitution, therefore, considers 
 the emission of bills of credit and the enactment of ten- 
 der laws, as distinct operations, independent of each 
 other, which may be separately ]iorformed. Both are 
 forbidden. To sustain the one, because it is not also
 
 200 Law of Local Taxation. [Chap. 8 
 
 the other; to say that bills of credit may be emitted if 
 they be not made a tender in payment of debts, is in ef- 
 fect to extinguish that distinct, independent prohibi- 
 tion and to read the clause as if it had been entirely 
 omitted. We are not at liberty to do this." [Marshall, 
 C. J., in Craig v. Missouri, 4 Peters, at 433, bottom, and 
 434.] 
 
 Taking private property for luiblic use and dam- 
 aging private property for public use are two distinct 
 acts. Both are equally prohibited, the one no more so 
 than the other. A damaging was not a taking. This 
 was the reason for the change in the Constitution. Now 
 "just compensation" is required in both cases. And 
 "just compensation" is to be settled by court and jury 
 or commissioners. Tlie questions that come up are, 
 Wliat is just compensation? How much? Is this a tak- 
 ing? The court must settle that. The power that takes 
 cannot settle that fact and bind the property-owner in 
 court. Is this a public use? This is a question for the 
 court. The Legislature cannot settle that question and 
 bind the property-owner in court. Is this property 
 damaged, and if so how much? This is a question 
 for court and jury or commissioners. The Legislature 
 cannot settle it and bind the property-owner. The state 
 constitutions disclose no such intention. Is this prop- 
 erty benefited, and if so how much? Here are questions 
 likewise for court and jury, certainly not for the Legis- 
 lature. The power that determines damages, deter- 
 mines benefits. If in passing an ordinance to grade a 
 street the legislative power determines the benefits, 
 then there is nothing for the Constitution to operate 
 upon. In one case, court and jury determine just com- 
 pensation for damaging at $1000, holding that there is 
 a damage, while the Legislature determine that this is 
 a $1000 benefit. Which shall control? Here is an irre- 
 pressible conflict. There can be no middle ground. In
 
 Chap. 8] Changes in Judicial R.ulings. 
 
 201 
 
 Craig v. Missouri, 4 Peters, supra, at 43(3, the court per 
 Marshall, C. J., continuing, say, as quoted before : 
 
 "The certificates for which this note was given, be- 
 ing in truth 'bills of credit' in the sense of the Consti- 
 tution, we are brought to the inquiiy : Is the note valid 
 of which they form the consideration! It has been long 
 settled, that a promise made in consideration of an act 
 which is forbidden by law is void. It will not be ques- 
 tioned, that an act forbidden by the Constitution of the 
 United States, which is the supreme law, is against 
 law. Now the Constitution forbids a State to 'emit 
 bills of credit.' The loan of these certificates is the 
 very act which is forbidden. It is not the making of 
 them while they lie in the loan offices ; but the issuing 
 of them, the ]iutting them into circulation, which is the 
 act of emission ; the act that is forbidden by the Consti- 
 tution. The consideration of this note is the emission 
 of bills of credit by the State. The very act which con- 
 stitutes the consideration, is the act of emitting bills of 
 credit in the mode prescribed by the law of Missouri ; 
 which act is prohibited by the Constitution of the 
 United States. Cases which we cannot distinguish from 
 this in principle, have been decided in state courts of 
 great respectability^; and in this court. 
 
 "In the case of the Springfield Bank v. Merrick et 
 al., 14 Mass. Rep. 322, a note was made payable in cer- 
 tain bills, the loaning or negotiating of which was pro- 
 hibited by statute, inflicting a penalty for its ^^olation. 
 The note Avas held to be void. Had this note been made 
 in consideration of these bills, instead of being made 
 payable in them, it would not have been less repugnant 
 to the statute ; and would consequently have been 
 equally void. 
 
 "In Huni v. Knickerbocker, 5 Johns. Rep. 327, it 
 was decided that an agreement for the sale of tickets in 
 a lotten% not authorized by the Legislature of the
 
 202 Law of Local, Taxation. [Chap. 8 
 
 State, although instituted under the authority of the 
 government of another State, is contrary to the spirit 
 and policy of the law, and void. The consideration on 
 whidi the agreement was founded being illegal, the 
 agreement was void. The Iwoks, both of Massachusetts 
 and New York, abound with cases to the same effect. 
 They turn upon the question whether the particular 
 case is within the principle, not on the principle itself. 
 It has never been doubted, that a note given on a con- 
 sideration which is prohibited by law, is void. Had tlie 
 issuing or circulation of certificates of this or of any 
 other description been prohibited by a statute of Mis- 
 souri, could a suit have been sustained in the courts of 
 that State, on a note given in consideration of the pro- 
 hibited certificates? If it could not, are the prohibi- 
 tions of the Constitution to be held less sacred than 
 those of a state law? It had been determined, inde- 
 pendently of the acts of Congress on that subject, that 
 sailing under the license of an enemy is illegal. Patton 
 V. Nicholson, 3 AMieat. 204, was a suit brought in one of 
 the courts of this district on a note given by Nicholson 
 to Patton, both citizens of the United States, for a Brit- 
 ish license. The United States were then at war with 
 Great Britain; but the license was procured without 
 any intercourse with the enemy. The judgment of the 
 circuit court was in favor of the defendant ; and the 
 plaintiff sued out a writ of error. The counsel for the 
 defendant in error was stopped, the court declaring 
 that the use of a license from the enemy being unlaw- 
 ful one citizen had no right to purchase from or sell to 
 another such a license, to be used on board an Ameri- 
 can vessel. The consideration for which the note was 
 given being unlawful, it followed of course that the note 
 was void. A majority of the court feels constrained to 
 say that the consideration on which the note in this
 
 Chap. 8] Changes in Judicial Rulings. 203 
 
 ease was given, is against the highest law of the laud, 
 and tliat the note itself is utterly void." 
 
 The ease of Kansas City ex rel. Diamond Brick 
 and Tile Co. v. Shroeder et al, decided in the Supreme 
 Court of Missouri on March 29, 1906, rehearing denied 
 May 22, 1906, is another case, showing the revolution- 
 ary tendencies of modern judicial opinions on ques- 
 tions of local taxation. [196 Mo. 281; Southwestern 
 Reporter, vol. 93, page 405, et seq.] The suit is against 
 the contractor and sureties on his bond given to pay 
 for labor and materials used under his contract with 
 Kansas City. The contention of the sureties was that 
 the ordinance was void, as also the contract between 
 the city and contractor, and also the contract with the 
 sureties. The contract comes up under section 12, ar- 
 ticle 17 City Charter of Kansas City, pages 234-5, 
 which is in these words : 
 
 *'Sec. 12. Public improvements— Contracts — Loiv^ 
 est and best bidder— Repair by day's work.— AW city 
 improvements of whatever kind or character, including 
 the erection of all public buildings, made or to l)e erect- 
 ed at the expense of the city, and including all work to 
 be paid for in special tax-bills, except as in this char- 
 ter otherw^ise provided, shall be let by contract to the 
 lowest and best bidder as shall be prescribed by ordi- 
 nance ; provided, however, that nothing in this section 
 shall be so construed as to prevent repair by day's 
 work of streets, alleys and other public places, curbing, 
 sewers, culverts, buildings or other city property, so 
 far as may be necessary, under the direction of the 
 board of public works." 
 
 All city improvements (including work to be paid 
 in tax bills) shall be let by contract to the lowest and 
 best bidder. Other methods are prohibited ''Wherefore 
 every- statute that limits a thing to be done in a parti- 
 cular form although it be spoken in the affirmative, in-
 
 20J: Law of Local, Taxation. [Chap. 8 
 
 eludes in itself a negative, viz., that it shall not be done 
 otherwise." [Stradlimg v. Morgan, Plowden 198b, at 
 206a, near bottom (A. D. 1560).] 
 
 All city improvements shall be let by contract to 
 the lowest and best bidder. Here is an implied nega- 
 tive that the public improvements shall not be let 
 otherwise than, first, by contract, and second, to the 
 lowest and best bidder. Other methods are prohibited. 
 Open competition is the rule enjoined by this statute. 
 Monopoly is prohibited. What is implied in a statute 
 is as much a part of it as what is expressed. Is ' ' form ' ' 
 sacred and ''substance" to be disregarded by the legis- 
 lative i^ower at its mere will and pleasure ? 
 
 In Kansas City v. Shroeder (S. W. Rep., vol. 93, 
 No. 2, page 405), the ordinance provided that the street 
 should be paved with "Diamond vitrified paving 
 brick;" one corporation owned exclusively the mater- 
 ial (it was not a patented material where the law 
 created the monopoly). The ordinance is so framed as 
 to exclude competition on the material brick. It may 
 add a like restriction as to sand and cement. It may on 
 the same principle provide that one class of workmen 
 shall be employed and all others excluded. In short, 
 the ordinance may totally nullify the charter provision 
 as to letting work to the lowest and best bidder by so 
 providing in the ordinance that one man only can fur- 
 nish part or all of the material. The city charter, the 
 statute law, requires this work to be let to the lowest 
 and best bidder. May a city ordinance dispense with 
 this necessary requirement of the city charter and still 
 be held valid by the courts 1 Can the city council do in- 
 directly that which it is prohibited from doing di- 
 rectly? 
 
 In City of St. Louis v. Davidson, 102 Mo. 149, the 
 act done was not prohibited ; it was a mere want of au- 
 thority. Say the court at page 153 :
 
 Chap. 8] Changes in Judicial Rulings. 205 
 
 **It will have been obsen^ed that the charter of the 
 city while it does not pennit, yet it does not prohibit 
 the making of such a contract as the one before us, so 
 that although the contract is ultra vires the corpora- 
 tion, yet it is not illegal because not prohibited by the 
 charter. This is a distinction clearly marked out by 
 the authorities. [2 Dillon Mun. Corp. (4 Ed.), sec. 
 936; Macdonald v. Mayor, 68 N. Y. 23; Bigelow on Es- 
 top. (5 Ed.), 685.]" 
 
 A. engages B. to steal horses and bring them to 
 him to dispose of, and A. promises to pay half of what 
 is realized from such sales of such stolen horses. Steal- 
 ing horses is prohibited. Is the contract to steal valid? 
 The contract to steal is just as much prohibited as the 
 stealing. A contract to murder is just as much prohib- 
 ited as murder. In either case can either party to the 
 contract to do the prohibited thing, have specific exe- 
 cution in equity or maintain a suit at law for damages ? 
 
 In Kansas City v. Shroeder, 196 Mo. 281, S. W. 
 E-ep. at 409, the Supreme Court of Missouri say : 
 
 ''The contract between the materialmen and the 
 contractor is independent of the contract between the 
 city and the contractor. Therefore the relief to which 
 the materialmen are entitled does not depend upon the 
 contract between the city and the contractor, but upon 
 that hetiveen them and the contractor. The fact, there- 
 fore, that the contract between the city and the contrac- 
 tor may be invalid, can have no effect upon the contract 
 between the materialmen and the contractor. ' ' 
 
 The two contracts are not independent. One is 
 part and parcel of the other. The contract between the 
 city and the contractor requires material and labor. 
 The materialman and the contractor have a contract 
 for the material to be used by the city contractor in do- 
 ing the city work. This is a suit on the contractor's 
 bond to pay for the brick used and required under this
 
 206 Law of Local Taxation. [Chap. 8 
 
 ordinance and contract without competition in viola- 
 tion of the statute, the city charter. This is the very 
 thing the charter prohibited. If the contract had been 
 a mere sale of brick by the owner to the contractor, 
 without any reference to the purpose for which the 
 brick are to be used, the case would be ditferent. There 
 is no prohibition on the sale of brick generally. 
 
 Here Kansas City violated the city charter. All 
 public improvements must be let by contract to the low- 
 est and best bidder. The ordinance nullifies this pro- 
 vision of the charter. The board of public works and 
 the city engineer in advertising that this work will be 
 let to the lowest and best bidder, cannot say to pro- 
 posed bidders that this work shall be done with Dia- 
 mond vitrified brick or any other brick just as good. 
 The board of public works and the city engineer could 
 not under this ordinance advertise for bids or let a con- 
 tract to be executed by the use of Smith's brick, even 
 though a better brick for paving purposes. They had no 
 more right to advertise for bids and let a contract for 
 this work to be done with any brick just as good as Dia- 
 mond vitrified brick (or better) than they had to adver- 
 tise to let a contract to pave the street with asphalt or 
 sandstone blocks. If they could advertise for letting a 
 contract to do this work with Smith's brick because it 
 is a better material for paving than Diamond brick 
 they might let a contract to do the work with asphalt, 
 a better material than either kind of brick, or sand- 
 stone blocks, which are better than Diamond brick. 
 AVhen the charter requires an advertisement for bids to 
 do public work to be let to the lowest and best bidder, 
 it aims at substance not form. 
 
 If the city engineer and board of public works ad- 
 vertise for bids for this work to be done with Diamond 
 vitrified brick, then in excluding other brick just as 
 good they violate the city charter. They have in sub-
 
 Chap. 8] Changes in Judicial Rulings. 207 
 
 stance, though not in form, dispensed with this require- 
 ment of the charter. If they accept other brick just as 
 good or better, or if they accept asphalt or sandstone 
 blocks, they do not follow the ordinance. They can not 
 dispense with any substantial reciuirement of the char- 
 ter or ordinance; if they do their act is wanting in au- 
 thority of law. 
 
 A city ordinance to pave can not be dispensed 
 with. In general, that ordinance must designate the 
 material. The reader myist not forget that this suit is 
 not on the contract of sale of the brick or other mater- 
 ial. It is a suit against the contractor and the sureties 
 on his bond to i)ay for the labor and material required 
 and used imder this contract authorized by this ordi- 
 nance. In general, a bond is good if it requires the ob- 
 ligors to comply with the law. But here there can be 
 no recovery unless there is a violation of law. Unless 
 the contract departs from the ordinance there can be 
 no recover>\ The law, the city charter, requires com- 
 petition and prohibits monopoly. The ordinance au- 
 thorizes and establishes monopoly for the whole work, 
 labor and material and destroys all competition. 
 
 This bond is conditioned that the contractor shall 
 pay for all labor and material required and used in the 
 city contract. If anything is left out of this contract — 
 this bond— what is it? He buys all the material and 
 pays for it. He employs all labor and pays for it. 
 This means necessary labor and necessary mater- 
 ial. The court say the contract for the material 
 is an independent contract, and the contract for the 
 labor is an independent contract. The sale or pur- 
 chase of brick is an independent contract, but when the 
 seller accepts this bond and sues on it, it is no longer an 
 independent contract. He can not recover on this bond 
 unless the brick were sold to be used and were used un- 
 der the city paving contract to pave the street.
 
 208 Law of Local Taxation. [Cliap. 8 
 
 The statute does not contemplate bond and secur- 
 ity separately for each item of labor. There is no such 
 thing authorized as a separate contract for the sand, 
 one for the lime, one for the cement, one for the brick 
 and one for the labor. The contract is one entire con^ 
 tract to do all the work and furnish all the labor and 
 material. Owners of brick, other than vitrified paving 
 brick, can not compete under such an ordinance. 
 Neither can the owners of sand or liine or cement. 
 Neither can the day laborer. One man, the contractor, 
 the monopolist, must furnish all these. The ordinance 
 authorizes mjonopoly. It prohibits competition. It au- 
 thorizes and requires just what the charter prohibits. 
 The brickmaker under this ordinance dictates the price 
 not only of the brick, but also of all other material and 
 all labor. We are speaking of the existence of the 
 power and not of the extent to which it may be exer- 
 cised. 
 
 It may be said that nearly all ordinances fix a 
 price beyond which the contractor can not go, as for ex- 
 ample, one dollar and fifty cents per square yard for 
 brick paving. He will always get the extreme limit, 
 one dollar and fifty cents per square yard. But a 
 power to fix a limit implies a power not to fix it. Leg- 
 islation can not be coerced. There is no difPeremce in 
 principle in limiting the cost of the work to one dollar 
 and fifty cents and refusing any limit at all. 
 
 If the common council of any city may violate the 
 charter in a small degree, and have their acts held valid 
 in the courts, they may violate the charter in a large 
 degree and have the courts hold their acts valid. The 
 imperative command of the law (sec, 12, City Charter, 
 art. 17, pp. 234-5), is, that work of this character ''shall 
 be let by contract to the lowest and best bidder.' ' Can 
 an ordinance provide, that this work shall be done with- 
 out compliance with this provision 1 Can the ordinance
 
 Chap. 8] Changes in Judicial. Rulings. 209 
 
 in tenns dispense with comx>liance with this provision? 
 Sliall this imperative command of the law be obeyed by- 
 city officials, or set aside, annulled and disregarded at 
 their mere will and oaprice? If the city officers can not 
 dispense with this requirement directly, they can not 
 do so indirectly. 
 
 Why does the city charter (art. 2, sec. 5, p. 16, City 
 Charter of Kansas City) require mem]>ers of the com- 
 mon council to take an oath to support the Constitution 
 of the United States and of this State and "the provis- 
 ions of this charter/' if they may disregard this provis- 
 ion or any other at their mere ivill and pleasure? Mo- 
 nopoly is just as much prohibited as train robbeiy. 
 
 This case (196 Mo. 281) makes a distinction be- 
 tween cases idtra vires and those prohibited by law, 
 and it is put among cases idtra vires. A contract pro- 
 hibited by law is certainly ultra vires. The law will 
 not suppose (except perhaps in case of special tax- 
 bills) that a corporation has power to do that which the 
 law forbids it to do. The forbidden act ought to be 
 held void in law. It should not fonn the basis for any 
 action under it by any one who comes under it and acts 
 under its pretended authority. Its only support is the 
 "divine right of kings." 
 
 If the common council of any city (Kansas City, 
 for instance), should pass an ordinance to crack all the 
 bank safes in Kansas City and take all the money there- 
 in to pay the city debts and to pay for the parks and 
 boulevards, this ordinance would certainly be ultra 
 vires; the act to be done would be nltra vires. But the 
 act would be one prohibited by law. An ordinance to 
 rob the railroads would be equally ultra vires. These 
 acts would also be prohibited by law. An innocent act 
 may be ultra vires. A criminal act, an act forbidden by 
 law, is always ultra vires. Cracking bank safes by ni- 
 tro-glycerine, gun cotton, city ordinances, or other vio- 
 
 14
 
 210 Law of Local Taxation. [Chap. 8 
 
 lent explosives ; train robberies and monopolies are all 
 ultra vires, but they are also forbidden by law. 
 
 Now, the city by ordinance makes a contract to 
 crack the bank safes, to rob the trains, and to grant 
 paving monopolies. The contractor in each case makes 
 a contract with the city to furnish all the material and 
 do all the work and labor necessary to complete in a 
 good workmanlike manner the work of cracking the 
 bank safes and robbing the trains and enforcing the 
 monopoly. This brick monopoly, this train robbery, 
 this cracking of the bank safes, are all prohibited by 
 law and they are all ^iltra vires. (Perhaps, after all, 
 the council might adjudge all these forbidden acts to be 
 really benefits, and no tribunal on earth could reverse 
 the decision.) 
 
 Under article 9, section 20, pages 160, 161, Kansas 
 City Charter, the contractor's contract to crack the 
 bank safes, to rob the train, and to establish the brick 
 monopoly, must contain a clause that the contractor 
 will pay for all labor and materials used in cracking 
 the safes, robbing the trains, and in enforcing the brick 
 monopoly. The contractor must give ample security 
 that he will well and faithfully violate the Kansas City 
 Charter according to the ordinance and the directions 
 of the city engineer and that he will pay off all the 
 hands engaged in robbing the train,, in cracking the 
 bank safes, or in supporting this monopoly. The men 
 who furnish or do the labor, the men who furnish the 
 material, must know of this violation of law, for they 
 sue on the surety contract which alone gives the right 
 against the sureties. 
 
 But knowledge of the unlawful purpose is not all. 
 If the material is not used in the street; if the material 
 is not used in cracking the safe or robbing the train, 
 there can be no recovery under the bond. Before a re- 
 covery can be had the law must be violated. We have
 
 Chap. 8] Changes in Judicial. Rulings. 211 
 
 no innocent man holdin"^ fleet horses while the princi- 
 pal rohs the ti-nin, for unless he thus renders this as- 
 sistance in robbing the train he can not recover on the 
 bond. Monopolies are just as much prohibited as train- 
 robbing or safe-cracking. 
 
 Generally, a party to a contract which is against 
 law or in violation of law cannot recover on that con- 
 tract. Here he cannot recover unless he has by his con- 
 tract violated law and is either a monopolist or his as- 
 sistant. Generally, a plaintiff must come into court 
 with clean hands, but if he come into court with clean 
 hands he is thrust aside by the cold hand of monopoly. 
 Unless he is a monopolist or his assistant he cannot re- 
 cover on this bond. A sale of personal property is valid 
 even when the property is to be used in a violation of 
 law. But if he knows of the intended violation of law 
 and concurs in it and approves it the contract is void. 
 The men who sold the sand ; the men who sold the 
 crushed rock, cannot recover unless they help the brick 
 monopolist on his brick monopoly. A mere sale of sand 
 is insufficient; a mere sale of crushed rock is insuffi- 
 cient. Both sales nmst be made to help the monopolist, 
 the brick monopolist. The materials so sold must be 
 so used; if not so used there can be recovery on the 
 bond. Unless the materialmen violate the law there 
 can be no recoveiy. 
 
 The selling of crushed rock is lawful ; the selling of 
 sand is lawful. 
 
 In St. Louis Fair Association v. Carmody, 151 
 Mo. 566, at 574, the court say : 
 
 ** A scheme lawful in itself cannot be made a cover 
 for one that is unlawful. The plaintiff's race track 
 and grand stand were lawful to be kept, but when it 
 adds to those the gambling booth, and runs them to- 
 gether, and then makes a contract that is appurtenant 
 to either and appurtenant to both, courts will not en-
 
 -12 Law of Local Taxation. [Chap. 8 
 
 tertain it merely because in its application it was not 
 limited entirely to the unlawful puipose. 
 
 ' ' If the house in question had been opened and 
 used for a double purpose, viz., as an honest social club 
 for those who do not desire to play as well as for the 
 pui-pose of gaming for those who did, it would not the 
 less be a house opened and kept for the purpose of 
 gaming." [Jenlis v. Turpin, 13 Q. B. Div. Law Rep. 
 505. See, also, White v. Wilson's Admr. (Ky.), 88 S. 
 W. Rep. 495.]" 
 
 '^If a law actually violates the Constitution, its 
 nullity must be declared, notwithstanding there may 
 have been no intent in the makers of the law to violate 
 that instrument. The constitutionality of a law cannot 
 depend upon the motives of its makers." {State v. 
 North et al., 27 Mo. 1. c. 479.] The same rule ought to 
 apply to the validity of an ordinance as against a city 
 charter. 
 
 "It is asserted by defendants that the ordinance 
 directing the improvement, and the contract therefor, 
 were both illegal and void, and, being so, cannot au- 
 thorize a recoverv^ by the interveners. The force and 
 efficacy of this objection depend upon the determina- 
 tion of the question as to whether the defendants are in 
 a position to avail themselves thereof. It appears from 
 the evidence that the work was completed, and tax-bills 
 in payment thereof issued and turned over to the con^- 
 tractor, all in accordance with the terms of the con- 
 tract. Under these circumstances it would seem that 
 defendants are in no position to say that the contract 
 and ordinance under which the work was done were 
 void, and thus escape the obligation to pay for the ma- 
 terial used by the contractor in the construction of the 
 work. The property-owners against whom the tax-bills 
 were issued are not here complaining, nor will their 
 rights be in any way affected by this suit, whatever the
 
 Cliap. 8] Changes in Judicial Rulings. 213 
 
 result may be. Tlie controversy is between the con- 
 tractor and the sureties upon liis contract bond upon 
 the one side, and the companies that furnished mater- 
 ial for the work upon the other." [196 Mo. 3(K)-1.] 
 
 The o])inion of the court raises the question as to 
 whether defendants "Are in a position to avail them- 
 selves" of this defense. This position is that there is 
 a defense. This o])inion assumes that monopoly is pro- 
 hibited and that defendants have a defense on the 
 ground of this ))i'ohibited monopoly. This o])inion as- 
 sumes that "The contract and ordinance under which 
 the work was done were void," but defendants cannot 
 avail themselves of this defense— this fact that the or- 
 dinance was void — this fact that the contract was void. 
 If the contract is void— if the ordinance is void — it will 
 require an embarrassing strain' on the judicial mind to 
 hold that the tax-bills issued under this void ordinance 
 and this void contract are valid. The imperative com- 
 mand of the law, that this work ''shall be let by con- 
 tract to the lowest and best bidder/' has been disre- 
 garded by this ordinance and this contract. The con- 
 tractor and his sureties cannot avail themselves of this 
 defense. The monopolist was the brick manufacturer. 
 The materialmen the laborers and the contractor were 
 the assistant monopolists. This monopolist was power- 
 less to enforce his monopoly without these assistants. 
 The matenalmen can sell their material, the laboring 
 men may do their labor, but unless all this is done to 
 further and assist this monopolist in his monopoly, 
 there can be no recovery on the bond. 
 
 The contractor did the work and funiished the ma- 
 terial and received in payment, not cash, but worthless 
 tax-bills. The property-owners will be in a position to 
 say that the contract and ordinance are void unless es- 
 topped by something not appearing in the case or the 
 record. The contract of the materialmen and laborers
 
 214 Law of Local Taxation. [Chap. 8 
 
 was for pay in cash, not in tax-bills admitted to be in- 
 valid. If suit had been brought on all these tax-bills 
 and the property-owners defend the suits successfully, 
 could the materialmen still recover under a contract 
 and ordinance which was in open defiance of this plain 
 injunction of this statute law that this work, this whole 
 work, including labor and material, "shall he let by 
 contract to the lowest and best bidder^'' Has the con- 
 tractor derived benefits under his contract when he has 
 nothing but worthless tax-bills ? 
 
 It is true as a principle of law that a person cannot 
 accept benefits under a contract and refuse its burdens. 
 But here there were no benefits. It is known as a mat- 
 ter of law that these supposed benefits, like the apples 
 of Sodom, will in the contractor's hands turn to dust 
 and ashes. 
 
 The Kansas City Court of Appeals has followed 
 Keith V. Bingham, 100 Mo. 300, in McQuiddy v. Smith, 
 67 Mo. App. 205, et seq. This case is a suit on a tax- 
 bill issued for grading Locust street in Kansas City 
 from Twenty-third street to Twenty-sixth street. The 
 ordinance was passed in 1890, fifteen years after the 
 adoption of the Constitution of Missouri of 1875. The 
 t?x-bill sued on in this case was a reissue, the original 
 having been held invalid because the wrong officer com- 
 puted the cost of the work. [^McQuiddy v. Vineyard, 60 
 Mo. App. 610.] The case was decided in the Kansas 
 City Court of Appeals at the March term, 1896. Mrs. 
 Smith was the owner of the land, against which the 
 tax-bill was issued, from the time the ordinance to 
 grade the street was passed in 1890 till the final decis- 
 ion of the case in the Kansas City Court of Appeals in 
 March, 1896. 
 
 Section 21 of article 2 of the Bill of Rights of the 
 Missouri Constitution, adopted in 1875, is thus: 
 
 "Section 21. Private property shall not be taken
 
 Clia}). 8] Changes in Jl'dicial Rl'ijngs. 215 
 
 or damaged for i>uljlic use without just compensation. 
 Such compensation [for taking or damaging] shall be 
 ascertained by a jur>^ or board of commissioners of not 
 less than tliree freeholders, in such manner as may be 
 prescribed by hiw; and until the same [ i. e., just com- 
 pensation for either taking or damaging] shall be paid 
 to the owner or into court for the owner, the property 
 shall not be disturbed or the i)ro])riotar\' rights of the 
 owner therein divested. The fee of huid taken for rail- 
 road tracks without the consent of tlie owner thereof 
 shall remain in such owner, subject to the use for which 
 it is taken." 
 
 ''Just Compensation" is required in two cases, 
 first for taking private property, and second, for dam- 
 aging private property. Article 7, Kansas City Charter, 
 1889, ]n'ovides for taldng ]irivate pro])erty, or condem- 
 nation cases as generally understood. It pro\'ides for 
 taking land for streets, alleys, boulevards, parks, etc., 
 where part of the land may be taken and part left and 
 the part left may be incddentally damaged. Article 8 
 provides for grading streets, alleys, etc., where lots 
 may be seriously injured, and yet there may be no 
 "taking'' within the meaning of the Bill of Rights as 
 previously written here and in the United States. 
 
 Formerly these were cases of " dammtm absque m- 
 juriu" as in C'lti/ of St. Louis v. Peter Gurno, 12 Mo. 
 414, et seq., and Taylor v. St. Louis, 14 Mo. 20 et seq., 
 and cases cited and commented on by the court. In 
 rendenng the opinion in the case in hand, at page 208, 
 the court say : 
 
 "In the ]:) resent action, the sole defense is, that 
 though these defendants were the owners of the prop- 
 erty at the date of the ordinance providing for the 
 work, and at all times since, yet they had no notice and 
 were not made parties to the proceeding in the circuit 
 court for assessing damages and benefits resulting
 
 216 L-^w OF Local Taxation. [Cliap. 8 
 
 from grading the street, as was then provided by ar- 
 ticle 8 of the Kansas City charter. The circuit court 
 held this no defense, and from a judgment enforcing 
 the tax-bill, defendants appealed. 
 
 "In this connection it may be well to state that, al- 
 though the defendants were not parties to the proceed- 
 ings in the circuit court to assess damages and benefits 
 for the proposed change of grade, yet, after the work 
 was done and the change effected, they sued the city in 
 a common-law action for damages and recovered the 
 sum of $2,750, which was paid. In our opinion, the 
 judgment of the circuit court was correct. It was not 
 intended by the provisions of the charter of 1889 to 
 make the assessment of damages and benefits for grad- 
 ing a street a condition precedent to the authority of 
 the city to order the improvement and assess the cost 
 thereof to the abutting property. The purpose of ar- 
 ticle 8 was to ])repare a way by which the city could 
 have settled beforehand the damages to be incurred by 
 the proposed improvement, so that it might be advised 
 in advance whether or not it was proper, and for the 
 public good, to prosecute the work. Section 15 author- 
 izes the city — even after verdict and judgment fixing 
 damages and benefits have been rendered— to abandon 
 the improvement and repeal the ordinance. If, how- 
 ever, the city should proceed with the work without 
 having these damages assessed, then it is clear that the 
 property-owner may resort to the courts and there se- 
 cure his damages by an ordinary action, as defendants 
 seem to have done in this instance. [The owner could 
 likewise sue the horse thief for his horse.] But 
 the failure to have these damages assessed in advance 
 of the work ought not to deprive the contractor of his 
 right of compensation. This is a matter of which he 
 has no control, and is a proceeding to which he is not a 
 party."
 
 Cliap. 8] Changes in Judicial Rulings. 217 
 
 This decision merely interprets the Kansas City 
 Charter as a statute. This decision does not attempt 
 to detennine the constitutional validity of this statute, 
 the Kansas City Charter. Under article 6, section 12, 
 Constitution of Missouri, appeals lie to the Supreme 
 Court '*in cases involving the construction of the Con- 
 stitution of the United States or of this State." By 
 amendments adopted in 1884 appeals and writs of er- 
 ror go from the circuit court direct to the Supreme 
 Court in all cases where appeals and error were to St. 
 Louis and Kansas City Courts of Appeals. So that 
 now, and at the time the case under consideration was 
 decided in March, 1896, the Sui)reme Court has exclu- 
 sive jurisdiction in all cases involving the construction 
 of the Constitution of the United States or of this 
 State. 
 
 The court then obsen^e that the city has complete 
 control over its streets ; it can grade and regrade, only 
 it is subjected to liability for damages if damages re- 
 sult. The court finally conclude : 
 
 "So, then, it is no defense to this tax-bill that the 
 property of these defendants, may, in fact, have been 
 injured rather than benefited by the street grading." 
 The same reasoning would apply to the taking as well 
 as damaging. 
 
 Moherhj v. Hogan, 131 Mo. 19, et seq., is a suit to 
 enforce, against abutting property, a taji-bill for street 
 paving. The court say, page 22, bottom : 
 
 *'At the trial the court refused to allow defend- 
 ant's offer of testimony to show that the lot was not 
 benefited by the improvement, but that its value was de- 
 stroyed thereby." 
 
 **The constitutional objections to the tax-bill are 
 groundless, in view of a number of decisions, extending 
 through many years of the history of this court. It is 
 established law that tax-bills of the sort in question are
 
 218 Law of Local Taxation. [Cliap. 8 
 
 sustainable as an exertion of the taxing power. [Gar- 
 rett V. St. Louis (1857), 25 Mo. 505; Palmyra v. Mor- 
 ton (1857), 25 Mo. 593; Farrer v. St. Louis, 80 Mo. 379'; 
 St. Joseph to use v. Owen (1892), 110 Mo. 445, 19 S. W. 
 Rep. 713.] The authority invested with the power of 
 taxation for such purposes determines the occasion for 
 the tax, and levies it upon the property subject to the 
 tax. Where that is regularly done, in accordance with 
 the terms of the law conferring the power, the pro- 
 priety of the tax in the particular instance is not a ju- 
 dicial question, and it is not reviewable by the courts in 
 the manner here attempted. [McCormack v. Pat chin 
 {1S73), d3 Mo. 33', Seibert V. Tifany (1879), 8 Mo. 
 App. 33; Estes v. Owen (1886), 90 Mo. 113, 2 S. W. 
 Rep. 133; St. Louis v. Eanhvn (1888), 96 Mo. 497, 9 S. 
 W. Rep. 910.] 
 
 "The trial court committed no error in excluding 
 the defendant's evidence offered." 
 
 Under the particular circumstances named, "The 
 propriety of the tax in the particular instance is not a 
 judicial question and it is not reviewable by the courts 
 in the manner here attempted." In what manner is 
 this question reviewable by the courts ? How and when 
 do the courts get authority to review a question not ju- 
 dicial? In what cases can the courts perform the func- 
 tions of the Legislature? The question stated cannot 
 be reviewed by the courts at all. 
 
 Garrett v. St. Louis (1857), 25 Mo. 505, referred to 
 in the case now under consideration, establishes the 
 doctrine that if the jury are directed to consider a gen- 
 eral benefit (one not special, peculiar, exceptive), then 
 such statute is in conflict with that provision of the 
 state Constitution that private property shall not be 
 taken for public use without just compensation, yet 
 here is a case wherein the tax is valid without any 
 benefit at all, general or special. The tax is valid
 
 Chap. 8] Changes in Judicial Rulings. 219 
 
 thoui^h tlie lot was not Ijenefittnl; "tlK>iip:h its value was 
 destroyed" by the work to pay for which the tax was 
 levied, and the tax is valid. 
 
 Consider the construction put by the court on this 
 particular statute, the Kansas City Cliarter. It makes 
 provision that when a street is to be graded and pri- 
 vate property may be damaged, a proceeding is had in 
 court to inquire into the fact whether private property 
 will be damaged, and if so how much ? The owner may 
 appear in court and prove the fact of damages to his 
 proijerty and the ampunt thereof. He has an oppor- 
 tunity to be heard on the question whether his property 
 will be damaged for public use and the amount there- 
 of. The constitutional provision gives him not dam- 
 ages for the injuiy done, but ''just compensation." 
 Section 12 of article 8 of the Kansas City Charter, 1889 
 (p. 134) is thus: 
 
 ''See. 12. When grading mag be done— Payment 
 of damages into ro?<r^— Should no claim for damages 
 be filed on or before the day set for hearing as pro- 
 vided in section five of this article, or if the verdict or 
 report of the commissioners shall declare that no dam- 
 age will result to private property from the proposed 
 grading or re-grading, or if damages assessed by said 
 verdict or report shall be paid to the owners, or into 
 court for them, the dtp may proceed to cause the grad- 
 ing or re-grading to he done according to the ordi- 
 nance. Payment to the clerk of the court for the owner 
 shall l>e deemed a ijayment into court of any damages 
 assessed." 
 
 The decision is that the city may cause the grading 
 to be done notwithstanding this charter provision is not 
 complied with. The city is not bound to com.ply with 
 the cliarter or tlie Constitution. 
 
 The opinion in McQidddy r. Smith, 67 Mo. App. 
 at 208, says:
 
 220 Lwv OF Local, Taxation. [Chap. 8 
 
 ^ ' It was not intended by the provisions of the char- 
 ter of 1889 to make the assessment of damages and 
 benefits for grading a street a condition precedent to 
 the authority of the city to order the improvement and 
 assess the cost thereof to the abutting property." 
 
 The writer is at a loss to understand the reason 
 for the foregoing conclusion of the court. The city may 
 cause the grading to be done under certain circum- 
 staiices : First, if no claim for damages be filed ; sec- 
 ond, if the verdict be that there are no damages; or 
 third, if damages be assessed and such damages are 
 paid to the owner or into court for the owner. The city 
 is not authorized to grade, unless these damages are 
 paid to the owner or into court for the owner. Here 
 Mrs. Smith's lot was damiaged by the grading to the 
 extent of $2,750. The law seems to be that upon pay- 
 ment of this $2,750 to Mrs. Smith the owmer, or into 
 court for Mrs. Smith the owner, the city may cause 
 the grading to be done. Has the city the power to cause 
 the grading to be done without complying with this 
 condition f Sujjpose the verdict in this cause had as- 
 certained the fact, as it afterwards turned out, that 
 Mrs. Smith's property was damaged to the extent of 
 $2,750. Under this statute had the city the power ' ' To 
 cause the grading or regrading to be done according to 
 the ordinance," without paying this $2,750 to Mrs. 
 Smith, or into the court for Mrs. Smith? The verdict 
 and judgment merely ascertained the fact of damage 
 and the amount. The verdict and judgment did not 
 create the damage. 
 
 The construction put by the court on this Kansas 
 City Charter becomes a part of it the same as if copied 
 into it. ' ' It was not intended by the provisions of the 
 Charter of 1889 to make the assessment of damages 
 and benefits for grading a street a comdition precedent 
 to the authority of the city to order the imiprovement
 
 Chap. 8] Changes in Judicial Rulings. 221 
 
 and assess the cost tliereof to the abutting property." 
 
 They may grade the street and thereby damage 
 private property for public use. They may so grade 
 and may so damage private property for public use 
 without ascertaining in advance or paying in advance 
 "just compensation" to the owner or into court for the 
 owner. This is this statute judicially constnied. 
 
 If the Legislature may thus make a law to damage 
 private property for public use without providing in 
 that law for ascertaining such ''just compensation" in 
 advance, and paying it to the owner or into court for 
 the owner, then, the Legislature may in like manner 
 make a law for taking private property for public use 
 without any provision for ascertaining or paying ''just 
 compensation" for such taking, either in advance or 
 otherwise, or to the owner or into court for the owner 
 (as in 25 Mo. 277). 
 
 Under the Constitution of Missouri of 1875, the 
 owner of private property is just as much entitled to 
 "just compensation" in advance for damaging private 
 property for jniblic use as he is entitled to "just com- 
 pensation" in advance for taking his private prox)erty 
 for public use. Both rights are secured in the same 
 sentence in. the Constitution. 
 
 "Legislative acts which direct private property to 
 be taken for public use must provide the owner with a 
 pro])er remedy to obtain compensation, or they will be 
 disregarded by the courts as inconsistent with the con- 
 stitution." [Walther v. Warner, 25 Mo. 277 loc. cat. 
 285-6.] 
 
 Although in a proper condemnation proceeding 
 "just compensation" was ascertained and paid to the 
 owner in Walther v. Warner, supra, yet this was no de- 
 fense to the action of trespass in entering the land and 
 building the road. The Kansas City Charter pays the 
 wrong man. In Walther v. Warner, supra, notwith-
 
 222 Law of Local Taxation. [Chap. 8 
 
 standing that in a condemnation proceeding the owner 
 secured "just compensation" for the land taken, he 
 can still recover for the trespass committed, for the 
 wrong done, while in McQuiddy v. Smithy although 
 Mrs. Smith recovered "just compensation" for dam- 
 aging her private property for public use, she must 
 pay the cost of doing that damage. The landowner was 
 more fortunate in Walther v. Warner, supra. 
 
 If in the way of a local tax a laudowner can be 
 compelled to pay the cost of damaging liis private 
 property for public use, why can't he be oompelled in 
 the way of a local tax to pay the cost of taking, up to 
 the value of the property? If private property can be 
 damaged without paying for it why can't it be taken 
 without paying for it? 
 
 In Armstrong v. The City of St. Louis, 69 Mo. 309, 
 et seq., one question was whether an action of eject- 
 ment might be maintained against St. Louis for land 
 used by the city as a street. The case was decided at 
 April term, A. D. 1879, of the Supreme Court. Say the 
 court at page 311 : 
 
 ' * The principal question in this case is, whether an 
 action of ejectment will lie against a city, by the owner 
 of land wrongfully taken by the city and converted into 
 and used as a public street. There are authorities which 
 hold that the action cannot be maintained, but the rea- 
 sons given for it are unsatisfactory. ' ' 
 
 In Cowenhoven v. City of Brooklyn, 38 Barb. 9, 
 the court say : 
 
 "The claim of the corporation, if any, was to a 
 public right of way over the land, not incompatible 
 with the title of the plaintiff, for it was a mere ease- 
 ment, nor with his possession, for if he owned the fee of 
 the land over which the street passes, he would, in con- 
 templation of law, be in possession of the street, and 
 might maintain trespass against another for any use of
 
 Cliap. 8] Changes in Judicial Rulings. 223 
 
 the land exce])! for the purpose of traveling." Com- 
 menting on this lang:nage of the Supreme Court of New 
 York, the Supreme Court of Missouri say: 
 
 "The owner of the land in such case is as entirely 
 deprived of the use of the land as if the city had tnken 
 it and claimed to be the owner in fee simple. To say 
 that he is in 'Contemplation of law in possession of the 
 street' is no answer to the real fact that he is entirely 
 deprived of the possession. He has the same right to 
 travel over the street as any other person not, however, 
 as owner of the property, but as one of the public, any 
 one of whom can exercise as much dominion over the 
 property as he. He is entirely deprived of his property. 
 He cannot sue the public or any one traveling on the 
 street, and recover his property ; and if he cannot sue 
 the corporation, which has taken and holds possession 
 of the premises as a street, and recover the specific 
 proj>erty then private property may be taken and held 
 for public use, icithout a compliance with the la-w pro- 
 viding a mode of condemnation. He may sue and re- 
 cover its value from the city, and has no other remedy, 
 it is contended; but this would be to hold his pro]> 
 erty at the mercy of tlie city, which can take it away 
 from him, and compel him to accept, ini lieu of the 
 property, the amount of money a jury may estimate it 
 to be worth, or, rather, a judgment for tliat amount, 
 which may possibly never be satisfied, and thus force 
 him to exchange his land, which he may wish to hold, 
 for money, or other property, wliich he does not want. 
 He has a right to the specific property and no corpora- 
 tion, not even the State^ can deprive him of it but in the 
 manner provided by law." 
 
 In Walther r. Warner, 25 Mo. 277, the railroad 
 company did not comply with the Constitution and the 
 law, and her contra<?tor and his assistants were liable 
 in an acti(5^ of trespass brought by the landowner. The
 
 224 Law of Local Taxation. [Chap. 8 
 
 landowner obtained judgment against the contractor 
 for what the contractor did. In McQuiddy v. Smith 
 the contractor obtained judgment against the land- 
 owner for what he did. The contractor had no con- 
 tract with the landowner in either case. Here is a 
 strange reversal of rights and liabilities. 
 
 In Soulard v. St. Louis, 36 Mo. 546, et seq., the 
 landowner recovered against St. Louis in an action of 
 trespass the value of the land taken by St. Louis for 
 public use as a street. A¥hen the money was paid the 
 title passed by oj^eration of law. If I take personal 
 property by trespass, the owner may in an action of 
 trespass recover against me the value of the personal 
 property taken, and when the judgment is paid the 
 title to the property passes by operation of law. 
 
 In like manner the landowner may now recover in 
 an appro jjriate action just compensation (this may be 
 more than damages) for damaging his private property 
 for public use by corporate action. This ' ' just compen- 
 sation" for either taking or damaging may now be re- 
 covered by the landowner from the corporation. But 
 the corporation, through its contractor, can recover 
 from the damaged landowner the cost of doing the 
 damage under the law of taxation. Why can't the 
 coi73oration by taxation recover from the landowner 
 the cost of taking, including the value of the land! It 
 is certainly a most remarkable law that pays the 
 wrongdoer to do this constitutional wrong. He is a con- 
 stitutional highwayman. Because the thing is prohib- 
 ited to the corporation, the courts look on the act as 
 being one which the corporation has no capacity to do. 
 Stealing is prohibited, i. e., the law takes away from 
 the individual the power to steal. People cannot steal 
 because the statute takes away their capacity to do so. 
 In Powers v. Hummert^ 51 Mo. 136 (referred to 
 elsewhere), a railroad condemned land for its road and
 
 Chap. 8] Changes in Judicial Rulings. 225 
 
 after the commissioners 's report was filed, ])ut before 
 the money was paid into court, the contractor for grad- 
 ing the railroad entered on the land and tore down the 
 fences and commenced grading the roadbed; then the 
 money was paid into court for the landowner who took 
 the money; he was just like a corporation in that re- 
 spect and sued the contractor in trespass and recov- 
 ered, directly the reverse of the holding in McQuiddy 
 V. Smith, above cited. If the city authorize a trespass 
 or wrong it is dangerous to sue the trespasser. He may 
 file a counterclaim for the cost of doing the trespass 
 (for the laborer is worthy of his hire, especially if he 
 is hired to violate the Constitution), and the wronged 
 individual may have to pay more on the counterclaim 
 that he obtains on the petition. 
 
 15
 
 CHAPTER 9. 
 
 OUR CONSTITUTIONS IN THE LIGHT OF THE HISTORY OF THE 
 
 STATES. 
 
 We ought to read the Constitution of Missouri, 
 adopted in 1875, in the light of the previous history 
 of tlie State. 
 
 By ordinance of the State Convention on July 19, 
 1820, a public fund for roads and canals is provided. 
 Five per cent of the sale of lands was put into a fund 
 to build roads and canals (see B),. S. 1825, vol. 1, p. 40, 
 under "Third" at bottom of page). Article 7 of the 
 Constitution of 1820 pro\aded that ' ' Internal improve- 
 ments shall forever be encouraged by the government 
 of this State," and funds are required to be provided 
 for improving roads and rivers. We have the canal 
 fund yet in all our Revised Statutes in Missouri even 
 njow. Article 7 of the Constitution was not changed till 
 1865. Pursuant to the direct requirement of the Mis- 
 souri Constitution of 1820, to encourage internal im- 
 provement, the State issued its bonds and took stock in 
 roads and railroads. This continued for forty-five 
 years after the admission of the State into the Union. 
 During this forty-five years, the State became involved 
 to a ver}^ great extent financially. Railroads and roads 
 were of more importance than streets. Plank roads 
 were first used and then macadamized roads. These 
 were all ''toll" roads. They were called "Turnpikes." 
 The corporation was required to construct and operate 
 the road and was authorized to charge "toll" for each 
 wagon, horseman or vehicle passing over the road. A 
 road of that kind was in use in this county connecting 
 Kansas City or AVestport landing with Westport. This 
 road was used in 1865 as a "toll" road. The toll gate 
 
 (226)
 
 Chap. 9] History and Our Constitutions. 227 
 
 was near Twenty-fourth street and Grand avenue in 
 Kansas City. We had then in early times state roads 
 and county roads. Later c^iine railroads. The coun- 
 ties, cities, towns and villages had subscriljed stock and 
 issued tlieir bonds for railroads. In article 11 of the 
 Constitution of 18G5, three sections are thus: 
 
 "Section 13. The credit of the State shall not be 
 given or loaned in aid of any ])erson, association or cor- 
 poration; nor shall the State hereafter become a stock- 
 holder m any corporation or association except for the 
 puii^ose of securing loans heretofore extended to cer- 
 tain railroad cor]w rations by the State." 
 
 "Section 14. The G-eneral Assembly shall not au- 
 thorize any county, city or town to become a stockhold- 
 er in or to loan its credit to any company, association, 
 or cor]X)ration, unless two-thirds of the qualified voters 
 of such county, city or town, at a regular or special 
 election, to be held therein, shall assent thereto." 
 
 "Section 15. The General Assembly shall have no 
 power, for any pui^pose whatever, to release the lieu 
 held by the State upon any railroad." 
 
 Section 13 took away all power in this direction 
 and section 15 is a direct and positive vote of the want 
 of confidence. The Legislature of the State, possess- 
 ing all legislative power, is supposed to be so just and 
 honest ns not to yield the state interest to any one, and 
 they, entrusted with making laws for the whole people 
 of the State, are supposed to be so wise that no artifice 
 or cunning can' be contrived by which the people's in- 
 terest entrusted to their hands will in any degi'ee suf- 
 fer. "We have no confidence in you," say the people 
 to the Legislature. It is so blunt and positive as to be 
 an insult to their honor, honesty and integrity. The 
 Constitution says to the L^egislature, "You shall not re- 
 lease the state lien on any railroad." Kead the lan- 
 guage of the Constitution in the light of the histoiy of
 
 228 Law of Local Taxation. [Chap. 9 
 
 the State in its connection with the railroads: "You 
 shall not release this state lien. We have no confidence 
 in you. You are shorn of all power on this subject. You 
 are not fit to be trusted ! ' ' Such a declaration against 
 a private person would be almost an actionable slander 
 or libel ; however, there were very good grounds for 
 this want of confidence. 
 
 Section 14 is a direct vote of want of confidence in 
 county courts, city, town and village councils: "The 
 Legislature shall not authorize any county, city or 
 town to become a stockholder in or loan its credit to 
 any company, association or corporation, unless two- 
 thirds of the qualified voters of such county^ city or 
 town at a regidar or special election to he held therein 
 shall assent thereto." 
 
 Neither the county officers elected by the people, 
 nor the city or town officers elected by the people, are 
 to be trusted. The whole people are close to them and 
 can watch them. If a man is not worthy, the people 
 are the persons to know him, and they need not elect 
 him. The officer may be elected by a bare majority but 
 if the stock was to be taken, or bonds issued, two-thirds 
 of all the voters must have assented thereto. A majority 
 was not enough; there must be two-thirds. Here was 
 a want of confidence in the official. Wliile the road or 
 railroad may be a great public benefit to the county or 
 city or town, yet the chosen representatives of the peo- 
 ple were not to be trusted in this matter without the 
 two-thirds vote. If one hundred men out of three hun- 
 dred oppose the road or bonds there was no official with 
 power to act or issue bonds or take stock. The tax 
 power was involved when the state credit was loaned 
 or bonds issued or stock taken. The tax power was 
 involved when the city or town or county took stock in 
 railways or issued bonds. If a mlunicipal corporation 
 can create a debt it must pay by taxation. Here is
 
 Chap. 9J History and Our Constitutions. 229 
 
 great want of confidence in tlie county, city and town 
 officials on this question as a tax question. 
 
 Then we began action under the Constitution of 
 1865. The State ceased to take stock or issue bonds 
 for roads and the Legislature authorized cities and 
 towns to take stock (and of course pay for it by levying 
 a tax) or issue bonds for roads (a tax must be levied 
 to pay the bond). The county court, the city and town 
 goveninient took stock and issued bonds for road-build- 
 ing, but it was soon ascertained in actual practice that 
 these officials could not be trusted even when sup- 
 ported by a two-thirds vote. Accordingly in the 
 Constitution of 1875 all power on this subject was 
 taken away. The tax power was involved in all these 
 roads just as much as it is now involved in our streets. 
 The State, the city, the town and the \'illage can get 
 money only by taxing. There is no other way to get 
 money to pay a state or county or city or town bond, 
 and if the corporation cannot tax, it cannot make a 
 bond. 
 
 Some power must determine whether a proposed 
 road will be any benefit, and if so how much. Roads 
 are in general beneficial to the countr}^ through which 
 they pass. How much benefit the road was to 
 the State, to the public, was determined by 
 the Legislature. In 1865, after an experience of forty- 
 five years, it was determined by the people through the 
 Constitution, that the Legislature was not a safe tribu- 
 nal with which to entrust this question of benefit in is- 
 suing bonds or taking stock in railroads. Indi\'iduals 
 could take stock in railways and give their notes and 
 bonds to pay for them. Individuals have been known 
 to take stock in roads and lose everything they put into 
 the road. As legislators they were not improved in 
 this respect by merely being raised from the private 
 walks of life to the ranks of legislators. If the Legis-
 
 230 Law of Local Taxation. [Chap. 9 
 
 lature had takeoi stock in railroads and paid for such 
 stock by bonds; if such stock had doubled— trebled — 
 quadiiipled — in value and had paid tean per cent divi- 
 dends i^er annum, the legislative power to determine 
 these benefits would not have been taken away from 
 the Legislature. The State, under the judgment of the 
 Legislature, entered into speculations in railroad-build- 
 ing and as a stockholder was to receive large benefits 
 and dividends, but the supposed benefits were never 
 realized. The State was a poor speculator. In fact, 
 the other fellow always speculated; the State always 
 lost, relying on the judgment of the Legislature as to 
 benefits. In 1865, after forty-five years of experience 
 in the mlatter of these legislative determinations of ben- 
 efits from roads, the people, through the Constitution, 
 concluded that the Legislature was a poor judge, and 
 its power was taken away. The Legislature had au- 
 thorized counties, cities and towns to issue railroad 
 bonds, but their good judgment as to benefits was ques- 
 tioned so that they could not act — could not determbie 
 these benefits— and issue the bonds unless two-thirds 
 of the voters voted for them. Without this two-thirds 
 vote the county court, the city council, the town council 
 were not proper or safe tribunals to determine this 
 question of benefit to be derived from the road. The 
 county court, the city council, the town council, even 
 when advised by a two-thirds vote, were in practice 
 very poor judges of the benefits of roads and the prop- 
 er method to get them. The county, city, town, always 
 lost. Co-stockliolders, always got the best of the bar- 
 gain. So in 1875 the people of this State, after fifty- 
 five years of experience, took away this power. The 
 Legislative judgment had always been at fault. The 
 judgment of the county court, the city council, town 
 council, had always been at fault, and the power was 
 taken away entirely. The Stat© could not take the
 
 Chap. 9J History and Our Constitutions. 231 
 
 stock or issue the bonds nor authoiize the city, county 
 or town to do so even with a two-thirds vote. The leg- 
 islative judgment, the official judgment, was not to be 
 trusted. After fifty-five years of experience this was 
 the people's determination as expressed in the Consti- 
 tution they adopted in 1875. 
 
 If the business judgment of the state legislature 
 on issuing bonds and taking stock in railroads is dis- 
 credited — if the business judgment of the county court 
 and the city council and town council on the question 
 of benefits in bonds and stocks for railroads is discred- 
 ited—not to })e relied on, why should the abutting prop- 
 erty-owner be turned over to such poor judges— judges 
 not to be relied on— not to be trusted after fifty-five 
 years of fair trial— judges whose bad (and in some 
 cases perhaps coiTiipt) judgment, has financially 
 ruined some of our cities and towns, and even counties ? 
 We are taxed to death. 
 
 Section 9 of article 8 of the Constitution of New 
 York is thus : 
 
 ''It shall be the duty of the Legislature to provide 
 for the organization of cities and incorporated villages 
 and to restrict their power of taxation, assessment, 
 borrowing money, contracting debts and loaning their 
 credit, so as to prevent abuses in assessments and in 
 contracting debts by such municipal corporations." 
 
 Here is a requirement to provide for the organiza- 
 tion of cities and incorporated villages and to restrict 
 their- 
 
 1. Power of taxation ; 
 
 2. Power of assessment ; 
 
 3. Power to borrow money ; 
 
 4. Power to contract debts; 
 
 5. Power to loan their credit. 
 
 These things must be done so as to prevent — 
 1. Abuses in assessments.
 
 232 Law of Local Taxation. [Chap. 9 
 
 2. Abuses in contracting debts. 
 
 AVithout entering at large into the meaning of this 
 language used we presume there can be no doubt that 
 the framers of the New York Constitution meant that 
 whatever restrictions were placed on the power of as- 
 sessment (meaning local taxes or assessments on abut- 
 ting property), must be placed there by the Legisla- 
 ture. It disclaims any intention on the part of the 
 framers of the Constitution to place restrictions on as- 
 sessments or local taxes. The Missouri Constitution 
 does not in term, or by implication, require the Legis- 
 lature to restrict the powers of cities and incorporated 
 villages in making local assessments. The Missouri 
 Constitution restricts taxation without referring the 
 matter to the Legislature to make restrictions. The 
 power to make an assessment must exist before it can 
 be restricted. The New York Constitutioiui assmnes the 
 existence of the power and refers the whole subject to 
 the Legislature. With this specific provision on local 
 taxation, other parts of the Constitution do not and can 
 not apply. With this specific provision in force, the 
 other niles of constitutional law do not apply, such as 
 these: ''No person shall be deprived of life, liberty or 
 property without due process of law ; " " Private prop- 
 erty shall not be taken or damaged for public use with- 
 out just compensation," etc., etc. 
 
 The New York Legislature could provide for the 
 organization of cities and incorporated villages as well 
 without this provision as with it. The New York Leg- 
 islature could restrict their powers of — 
 
 1. Taxation; 
 
 2. Assessments ; 
 
 3. Borrowing money ; 
 
 4. Contracting debts; 
 
 5. Loaning credit; 
 
 as well without this constitutional provision as with
 
 Chap. 9] History and Our Constitutions. 233 
 
 it. It is DO restriction at all. The statute admits a 
 power in cities and incoi-porated villages to tax, to con- 
 tract debts, to borrow money, and loan credit. 
 
 "There is no way of enforcing this injunction on 
 the Legislature. Under our system of government 
 there is no power to compel the legislative department 
 of government to make laws. Constitutions may re- 
 strict legislative powers, and declare what laws shall 
 not be valid; but from the very nature of legislative 
 ])Ower, its exercise in a particular case must dejDend 
 upon the volition of the Legislature. "Responsibility 
 to a constituency, and a sense of public duty are the 
 only incentives which can prompt legislative action." 
 [St. Joseph Board of Public Schools v. Patton et al., 
 62 Mo. 444, at 448 (A. D. 1876).] 
 
 Again, page 449 : 
 
 ''The Legislature already possessed the power of 
 limiting taxation to the maximum adopted in the Con- 
 stitution." 
 
 "Private property shall not be taken or damaged 
 for public use without just compensation," is in sub- 
 stance in the Constitution of New York. "No person 
 shall be deprived of life, liberts^ or property without 
 due process of law," is likewise in substance a part of 
 the Constitution! of New York. All the parts of a stat- 
 ute must be construed together and a constitution is a 
 statute within the meaning of this rule. The only dif- 
 ference is that no act of the state Legislature can over- 
 ride the state Constitution. In the respects indicated 
 the New York Constitution makes no restrictions. The 
 New York Constitution re<]uires her Legislature to 
 pass laws restricting the powers of cities : first, of tax- 
 ation; second, assessments; third, of boiTowing money; 
 fourth, of contracting debts; fifth, of loaning their 
 credit. Why restrict these five powers if they do not 
 exist?
 
 234 Law of Local Taxation. [Chap. 9 
 
 The power to tax is generally regarded as a legis- 
 lative power, and in general, legislative powers cannot 
 be delegated. Cities in New York without any general 
 or special act of the state Legislature, by mere force 
 of the state Constitution without more, possess the 
 powers enumerated, viz. : first, taxation ; second, local 
 assessments ; third, borrowing money ; fourth, contract- 
 ing debts; fifth, loaning their credit. Cities in New 
 York have the powers named. No act of the New York 
 Legislature is necessary. Unless the Legislature make 
 restrictions, these five powers are absolutely without 
 any limit. 
 
 A city in New York, by the mere force of her Con- 
 stitution, without any enabling act on the part of her 
 Legislature, may tax all the property in her city limits 
 one hundred per cent; that city may make a local as- 
 sessment of one hundred per cent ; the city may borrow 
 money to the extent of one hundred per cent of all the 
 taxable property; the city may contract debts to the 
 extent of one hundred per cent of all the property in 
 the city; the city may loan its credit to the extent of 
 one hundred per cent of all the property in the city 
 and these Shylock bonds are good unless the Legisla- 
 ture restrict these five powers, and then the bonds are 
 good up to the line marked out by the Legislature. 
 
 In local taxation, and in the other kinds of taxa- 
 tion, the New York Legislature is not governed or lim- 
 ited or controlled by her Constitution. Such is the 
 plain meaning of the language used by the framers of 
 that Constitution. The New York Constitution confers 
 the five powers which it directs her Legislature to re- 
 strict "So as to prevent abuses in assessments and in 
 contracting debts by such municipal corporations." 
 It is said that ''AH power may be abused." This 
 is the favorite expression of the advocates of the 
 unlimited power of local taxation, a power that does
 
 Chap. 9] History and Our Constitutions. 235 
 
 not exist cannot be abused. A power tliat does not exist 
 cannot be restricted. 
 
 In 1875 the Supreme Court of Missouri, and al- 
 most all the states, had given a constitutional cliaraxj- 
 ter to local taxation by a great nuiiilier of decisions. 
 It was taxation on benefits. Other kinds of taxation 
 were burdens. These local taxes were not burdens. We 
 now see that this was the song the sirens sang luring 
 us on to destruction. It was the serpent in Eden just 
 before the fall. It was the kiss of Judas just before 
 the crucifixion. It was the destroying angel entering 
 our midst wearing the livery of heaven, beginning 
 anew the work of destruction, putting the few, the de- 
 fenseless, the weak under the unlimited power of city 
 and town councils who (notwithstanding all the checks 
 on arbitrary power) had for more than half a century 
 been traitors to the interests entrusted to their care. 
 It is the Benedict Arnold of our countiy. It is worse 
 than the rattlesnake, which gives you notice before it 
 strikes the fatal blow and administers the fatal poison. 
 This vicious doctrine has pursued and still pursues the 
 defenseless, the few, the weak, to their destruction with, 
 the relentless fury of the damned. It puts right on 
 the scaffold and irrong on the throne. It is the Par- 
 thian arrow that penetrates the heart of the constitu- 
 tion and deadens it. It is the prolific parent of more 
 injuiy, wrong and injustice in one year than all the 
 other robberies, larcenies and burglaries in ten years. 
 It is the malignant cancer that has eaten tlie heart out 
 of our constitutions and laws. And when now the un- 
 fortunate victim ends his days on earth— when he en- 
 ters old Sharon's boat to be carried over the Stygian 
 river — the Lethean stream of forgetfulness and death 
 —if old Sharon's boat lands him in Pluto's dominions, 
 he may rest serene in the assurance that the statutes
 
 -36 Law of Local Taxation. [Chap. 9 
 
 and constitution of Hell are not, never were, never will 
 be and never can be worse. 
 
 "It is IV ell settled by the decisions of this court 
 tJmt assessments like those sued on are not regarded 
 as a tax hut as an assessment for improvements, and 
 are not considered as a burden but as an equivalent or 
 compensation for the enhanced value which the prop- 
 erty derived from the improvement." 
 
 Did the court mean that such assessments were not 
 considered as burdens while they were in fact the most 
 onerous of burdens! Did the court mean that we were 
 to take the declaration as a judicial lie! This tax is an 
 equivalent or compensation for the enhanced value 
 which the property derived from the improvement. 
 When the value is enhanced one dollar, did the courts 
 mean that tlie property-owner must pay two, three, or 
 a hundred dollars ! Did the court mean to assert that 
 a one-dollar benefit is the equivalent of a two-dollar 
 tax? If so, we may have a thousand-dollar tax the 
 equivalent of a one-dollar benefit. Is this the equiva- 
 lency meant by the court ? Did the court mean that the 
 humble citizen, for one dollar benefit conferred by the 
 public, the state, or city, or town, without his request, 
 should be compelled to pay against his will one him- 
 dred dollars? When there is no benefit at all, did the 
 court mean that the property-owner must pay this tax 
 as an equivalent for the benefit conferred which was 
 nothing? Did the court mean that the property-owner 
 must pay a three-hundred-dollar tax-bill as an equiva- 
 lent or compensation for a twenty-seven-hundred-and- 
 fifty-dollar damage to his property? Was that the en- 
 hancement in value meant by the court for which the 
 proi>erty-owner must pay? 
 
 Did the court in its decisions prior to 1875 mean 
 that this was the tax which was no burden? The Su- 
 preme Court of this State had held in numerous decis- 
 ions that if there was lacking this x>e<5uliar, exceptive,
 
 Chap. 9] History axd Our Constitutions. 237 
 
 benefit, the local tax was unconstitutional. The Su- 
 preme Court had held in numerous decisions that a gen- 
 eral benefit rendered the tax unconstitutional. [25 Mo. 
 535.] The case of City of St. Louis to use v. Allen, re- 
 ferred to supra, was on tax-bills for "curbing, gutter- 
 ing and macadamizing" in front of defendant's prop- 
 erty. This decision was rendered in 1873, two years 
 before the Missouri Constitution of 1875 was adopted. 
 The tax-bill in the case oiSheehan v. The Good Samar- 
 itan Hospital was ''for the improvement of the street 
 on its front." "Local assessments are constitutional 
 only when imposed to pay for local improvements con- 
 ferring special benefits." [54 Mo. 1. c. 474.] This was 
 in 1873. None of these cases are condemnation cases 
 involving what is called the power of eminent domain. 
 Local taxation is involved alone. The constitution:'.! 
 pro^^Lsion in reference to taking private property for 
 public use was changed. "Private property shall not 
 be taken or applied to public use without just compen- 
 sation." In Neirhij v. Platte Count ij, 25 Mo. 258, the 
 court held that what was a just compensation for land 
 taken was a judicial question for the courts, not a legis- 
 lative question for the legislative power. The consti- 
 tutional provision was changed. 
 
 It was well known that town lots were in many 
 cases ruined by lowering grades, or by cuts and fills, 
 so that the property was inaccessible. We have streets 
 in Kansas City graded in 1854 for the Santa Fe trade 
 and much of the abutting property has been rendered 
 worthless and unfit for use for more than fifty years. 
 G-rading a ]niblic highway we may say is always an ad- 
 vantage to the iniblic but it may be an advantage or a 
 damage to abutting property. Grading proved a total 
 ruin to many lots here in Kansas City, notwithstanding 
 the village had only five hundred population when the 
 ffradinc: was done, and two hundred and fifty thousand
 
 238 Law of Local Taxation. [Chap. 9 
 
 population in the city fifty years afterward. The Con- 
 stitution of 1875 aimed to remedy such cases. In St. 
 Louis r. Peter Gnrno, 12 Mo., the property was dam- 
 aged $1,675, according to the verdict of the juiy and 
 judglinent of the court. The judgment was reversed, 
 not because the ordinance of the St. Louis council di- 
 recting the grading had conclusively deteraiined that 
 the grading was a benefit to Gumo's property, but be- 
 cause it was ''damnum absque injuria" to that prop^ 
 erty. St. Louis must determine whether the grading 
 of this street is a benefit to St. Louis. St. Louis can 
 decide that only by agent. Hence, the actioni of her 
 council is conclusive against the city, but it is not con- 
 elusive against the abutting property-owner. It was 
 not clauned that the St. Louis council had power to 
 decide the question whether tliis grading would benefit 
 abutting property, and that she had so decided that it 
 was a benefit by passing the ordinance to grade the 
 street, and that therefore court and jury cannot inquire 
 into it. The case is a case of confession and avoidance. 
 The damage is admitted but it is ''damnum absque in- 
 juria." Prior to 1875 no one ever claimed that Mr. 
 Gumo 's property was really benefited by this grading ; 
 that the St. Louis council had power to decide that 
 question] and by passing the ordinance did conclusively 
 and finally determine that the work was a benefit and 
 not a damage, and that the property-owner could not 
 inquire into the question in the courts. 
 
 Hence, the change in the Constitution in 1875, 
 "Private property shall not be taken or damaged for 
 public use without just compensation." After the 
 adoption of this Constitution in 1875, the property- 
 owner was just as much entitled to just compensation 
 for damaging his private property for public use as 
 for taking it for public use; both rights are secured in 
 the same sentence in the Constitution. What is a just
 
 Chap. 9] History and Our Constitutions. 
 
 239 
 
 compensation for damaging private property is just 
 as much a judicial question as what is just compensa- 
 tion for taking. "The rule of constitutional law beingi 
 that pHvate property can not l)e taken, for public use, 
 by the authority of the Legislature, without a just com- 
 pensation, it follows that wliat is to be considered as 
 compensation within the meaning of the clause is a 
 question of law for the courts and not a matter for the 
 Legislature." [25 Mo. 263 (A. D. 1857).] The same 
 rule ought to apply to damaging. This decision of the 
 Supreme Court, of :Missoun constniing the Constitu- 
 tion] of the State became a part of that Constitution the 
 same as if copied into it, and this was a part of the 
 Constitution prior to 1875 the same as if copied into it. 
 In the Constitution of 1875, damaging is just as much 
 prohibited as t^kdng; both words are in the same sen- 
 tence associated together by the framers of the Con- 
 stitution. ^Y[mi is damaging private property for pul> 
 lie use, rather what is just compensation for damaging 
 private property for pnblic use, is under the Constitu- 
 tion of 1875 just as much "A question of law for the 
 courts and not a matter for the Legislature," as what 
 was just compensation for taking under the Constitu- 
 tion of 1820 or 1865. 
 
 State roads and railroads are a great advantag-e to 
 the State. From such state roads and railroads the 
 State derives much benefit. But it was ascertained af- 
 ter faithful trials for more than forty years that it was 
 rmiwise to trast the legislative determination of bene- 
 fits from roads and railroads. The roads and railroads 
 were undoubtedly some benefit to the State and her 
 property and citizens. But in experience the benefit 
 cost too much to the State. The State built the roads, 
 and the other stockholders owned them. The state Leg- 
 islature in place of running the roads and railroads, 
 was run by them and perhaps to the disadvantage of
 
 240 Law of Local Taxation. [Chap. 9 
 
 the State. Eoads and railroads were and are a bene- 
 fit to the counties and cities and towns through which 
 they pass. But the county court, the city and town 
 council, were not wise enough to judiciously secure ben- 
 efits from roads and railroads without the two-thirds 
 vote of the county, city or town, and with all this good 
 and judicious advice derived from the two-thirds vote, 
 it was ascertained in 1875 that in place of the county 
 court, city or town council, controlling railroads, the 
 roads and railroads controlled the county court, the 
 city council, and the town council. The state legisla- 
 tures, the county courts, the city councils, the town 
 councils, were knaves or fools not to be entnisted with 
 this power of taxation for roads and railroads and with 
 the determination of benefits derived from such 
 sources. Hence, the power was taken away entirely. 
 There was too much danger of injury and fraud. But 
 the framers of the Constitution of 1875 went still fur- 
 ther. The pro\asion adopted was that private prop- 
 erty shall not be taken or damaged for public use with- 
 out just compensation, but it also provided that such 
 just compensation, either for taking or damaging, shall 
 be ascertained by a jnry or board of commissioners of 
 not less than three freeholders, in such manner as may 
 be provided by law. '^And until the same (just com- 
 pensation) shall be paid to the owner or into court for 
 the owner, the property shall not be disturbed or the 
 proprietary rights of the owner therein divested." 
 
 The law to be enacted may provide for a jury or it 
 may provide for a board of commissioners of not less 
 than three freeholders. 'Must compensation" must be 
 paid either to the owner or into court for him. This 
 Constitution contemplates a jury or commissioners and 
 a court. This requirement of the Constitution could 
 not be satisfied by a law appointing city councils, or 
 town councils, commissioners or a jury. This Consti-
 
 Chap. 9] History and Our Constitutions. 241 
 
 tution did mot contemplate making a town council a 
 juiy to ascertain just compensation for land taken for 
 public use, and land damaged for public use is to be 
 treated the same way. The money may be paid into 
 court. This contemplates a i>roceeding in court, 
 whether the land be taken or damaged. For condemna- 
 tion proceedings, as usually understood, we have al- 
 ways had a court proceeding. Now, damaging and tak- 
 ing are put together in the Constitution. If the reader 
 will excuse the expression, we may say we have a con- 
 demnation for taking and a like condemnation proceed- 
 ing for damaging. Wliether the just compensation 
 shall be one dollar or one thousand dollars, is for tlie 
 court. The condemning power cannot determine this 
 question. \Aliether the thing done is a taking, is a ju- 
 dicial question for the court {St. Louis v. Hill, 116 Mo. 
 527). Wliether a given act is a damaging, is certainily 
 a judicial question for the courts. 
 
 The city could not use a street and then when sued 
 defend on the ground that it never took it, and by its 
 own determination bind the property-owner. This was 
 the law, constitutional law, ten years before the adop- 
 tion of the Constitution of 1875 {Soulard v. St. Louis, 
 36 Mo. 546.) 
 
 Bead the Constitution of Missouri of 1875 in the 
 light of the Constitution of 1865 and 1820, in the light 
 of histoiy of the State on roads and railroads, and on 
 state and municipal aid to roads and railroads and pub- 
 lic improvements, and on the power of the Legislature 
 to determine the benefits of the State and the county 
 courts, and city and town councils, to deteniiine bene- 
 fits to the county, the city, the town. Read the Consti- 
 tution of 1875 in the light of the municipal bond litiga- 
 tion against cities, towns and villages, and counties, 
 and the ])ublic discontent as to taxes to be raised to ]iay 
 these bonds, and the hardships endured on account of 
 
 16
 
 242 Law of Local Taxation. [Chap. 9 
 
 mmiicipal debts for public improvements, and tlie im- 
 prisonment of county judges for refusing to \evj taxes 
 to pay judgments on municipal railway aid bonds, and 
 the well-lmown public sentiment of distrust in these 
 various railway schemes involving taxation. And dur- 
 ing all this turmoil, no one ever doubted the benefits of 
 roads and railroads. The distrust was in the Legisla- 
 ture, in the county court (cropping out in one instance 
 in the tragedy at Gunn City), in the town and city 
 council. Read tlie Constitution of 1875 in the light of 
 the decisions of the Supreme Court construing similar 
 pro^^sions in the former constitution. Local taxation 
 without the special, peculiar, exceptive benefit was un- 
 constitutional. If the benefit was general, the tax was 
 unconstitutional. That was constitutional law in this 
 State at the time the Constitution of 1875 was framed 
 and adopted. 
 
 If the benefit was generaJ, the local tax was uncon- 
 stitutional. It was at least equally unconstitutional if 
 in place of a general benefit the property received a 
 damage. In Cole v. LaGrange, the Supreme Court of 
 the United States held that municipal bonds given to 
 encourage manufacturers in the town, were without au- 
 thority and the reason for so holding was that there 
 was no power to tax for such purpose. This was the 
 assertion of a mere want of authority. 
 
 Before 1875 a local tax for anything except that 
 conferring a special, peculiar, exceptive benefit was un- 
 constitutional. 
 
 Grotius tells us that ''The property of subjects is 
 under the eminent domain of the State, so that the 
 State, or he who acts for it, may use and even alienate 
 and destroy such property, niot only in cases of extreni,e 
 necessity— in which even private persons have a right 
 over the property of others— but for the ends of pub- 
 lic utility; to which ends those that founded civil so-
 
 Chap. 9] History and Our Constitutions. 243 
 
 ciety iiiiust be supposed to have intended that private 
 ends should give away; but it is to be added that when 
 this is done the State is bound to make good the loss." 
 \Neuhy r. Platte County, 25 :\Io. at p. 260.] Puffen- 
 dorf is quoted from also. 
 
 We have quoted elsewhere from the Memoirs of 
 the Turkish Govenimeut and the lot in Constantinople. 
 After making these statements as to continental law, 
 our Supreme Court, continuing say: 
 
 "But in Europe this principle is, in reference to 
 the action of the government, a mere moral rule im^ 
 posing no legal restraint upon the legislative author- 
 ity ; while the American people, by incori30 rating it into 
 their Constitution and making it a rule of constitu- 
 tional law of superior obligations to the enactments of 
 the legislative department, have placed private prop- 
 erty under judicial protection, against all efforts on 
 the part of the government to take it from the owner, ' ' 
 etc., .et<?. [25 Mo. 262.] 
 
 A general benefit made this local tax unconstitu- 
 tional. From the issue of state bonds and county bonds 
 and city and town bonds for public improvements, such 
 as roads and railroads, the people of the State became 
 well acquainted with what the Legislature would do if 
 subject only to moral rules. They became well ac- 
 quainted with what the city and town and village coun- 
 cil would do, even when advised by a two-thirds vote if 
 subject only to moral rules. Moral rules were not a 
 sufficient restraint on the Legislature. The moral rule 
 was good enough, but the Legislature would not or did 
 not follow it. Moral rules were not a sufficient re- 
 straint on comity courts and city and town and village 
 councils. Moral rules were good enough, but they did 
 not follow them. Tf, in the opinion of the framers of 
 the Constitution of 1875, moral rules were not sufficient 
 for public improvements of the State to be paid by
 
 --1-4 Law of Local Taxation. [Chap. 9 
 
 state tax; if moral rules were not sufficient for the 
 couniv court for public iuiprovements (railroads and 
 roads) ; if moral niles were not sufficient for city and 
 town council for roads where all property is taxed— 
 was it intended to be the rule for street improvements, 
 where the abutting property alone is taxed? 
 
 Read tlie Constitution of Missouri of 1875 in the 
 light of the history of the State on state bonds and 
 comity bonds and city bonds and town bonds, and aid 
 to railroads and roads, and its restrictions on the crea- 
 tion of debts by towns and cities. 
 
 ''At the trial the court refused to allow defend- 
 ant's off'er of evidence to show that the lot was not ben- 
 efited by the improvement but that its value was de- 
 stroyed thereby." [131 Mo. p. 22 (bottom), 23 (top).] 
 The judgment was affirmed (A. D. 1895, a suit on a tax- 
 bill for paving the street). In 1884, nine years after 
 the Missouri Constitution was adopted, the Supreme 
 Court had said (and it must have been constitutional 
 law up to that time) that the property-owner, in a suit 
 on the tax-bill, could "entirely defeat a recovery by 
 overthrowing the theory of benefits conferred." [84 
 Mo. 259.] 
 
 In Sheehan v. Good Samaritan Hospital, 50 Mo. 
 155, and in other well-considered cases in this and 
 other states it is decided that property exempted 
 "from taxation of every kind" is still liable for assess- 
 ments for local improvements. In the case just cited 
 the court say: 
 
 ' ' The tax-bill here sued on is not regarded as a tax, 
 but as an assessment for improvements, and is not con- 
 sidered as a burden but as an equivalent or compensa- 
 tion for the enhanced value which the property derives 
 from the improvement." [84 Mo. 259.] Is this a dis- 
 tinction ivithout a difference? 
 
 All our constitutions in Missouri from 1820 to the
 
 Chap. 9] History and Our Constitutions. 245 
 
 present time have required property to be taxed ac- 
 cording to its value. The Constitution of 1820 did not 
 require all property to be taxed. The Constitution of 
 1875 remedial that nxatter by declaring that ceilain 
 proj>erty shall be exempt and that all other property 
 shall ])e taxed or rather that no other property shall be 
 exempt by act of the Legislature. Assessments of 
 })ro])ei'ty were re(piired to l>e uniform throughout the 
 State. The city or town assessment could not exceed 
 the state assessment. This was to prevent a town lot 
 being assessed at ten dollars value for state taxation, 
 and one hundred dollars for town taxation. The state 
 assessment controlled. The town assessment could not 
 be higher than the state assessment. It might be equal 
 to it, but by no means could it exceed the state assess- 
 ment. Gentle reader, did you ever know of a single 
 town lot in any city, town or village in Missouri since 
 the present Constitution was adopted (Nov. 30, 1875) 
 being assessed at a lower value for city, town or vil- 
 lage taxation than the state assessment! They always 
 come up to the state assessment ; they would go beyond 
 it if they dared to do so. The Constitution is in their 
 way. And it is no answer to say that the state assess- 
 ment is only forty per cent of the real value. Property 
 had never been assessed at its real value. Tliis had 
 been the rule of assessment from the time of the admis- 
 sion of the State into the Union. This applied to all 
 property alike. All ]ieople are veiy, very poor when 
 the assessor comes around to get the assessment. Peo- 
 ple have veiy little property then, and that little is 
 not worth anything. Real estate at that time ceases to 
 have any value except one merely nominal. The true 
 value is never revealed except in case of fire (and then 
 only to collect on the fire policy), or in case a railroad 
 needs the land, or kills the cow, or the city or town 
 needs the land for a park or street or boulevard.
 
 246 Law of Local Taxation. [Chap. 9 
 
 The framers of the Constitution of 1875 knew this 
 to perfection. They were well aware that for taxation, 
 low assessments (far below the real value) had always 
 been made. The nile was almost universal. Everj^body 
 had a right to swear to a lie and return it to the asses- 
 sor. The return values have always been low, very 
 low, scandalously low. This was well known to the 
 framers of the Constitution of 1875. They knew that 
 cities, towns and villages would make assessments 
 enormously high in order to get money to spend. Their 
 necessities would know no bounds. The largest tax is 
 one per cent. They could double or treble the assess- 
 ment and get money to spend. They can not contract 
 debts beyond five per cent on assessed values. The 
 state assessment cian not be exceeded. If it were not 
 for this constitutional restriction every city, town and 
 village would make estimate of the amount of money 
 they need, and then find what sum that was five per 
 of, and that would be the assessed value of the town. 
 The framers of the Constitution determined not to 
 leave this means of escape. They knew of the custom 
 of low values for taxation. They knew that these low 
 values for taxation had been the rule in England for 
 more than three hundred and fifty years before they 
 framed this Constitution. 
 
 Hugh Latimer, in a sermon at Stamford, about A. 
 D. 1545, says: 
 
 ''When the Parliament, the high court of this 
 realm, is gathered together and there it is detennined 
 that everj^ man shall pay a fifteenth part of his goods 
 to the king, then commissioners come forth, and he that 
 in sight of men, in his cattle, com, sheep, and other 
 goods is worth an hundred marks, or an hundred pomid 
 will set himself at ten pound; he will be worth no more 
 to the king but after ten pound. Tell me now, whether 
 this be theft or no? He will marry his daughter and
 
 Chap. U ] History and Our Constitutions. 247 
 
 give with her four or five hundred marks, and yet at 
 the valuation he will be a twenty-pound man." How 
 long this sentiment existed before Hugh Latimer de- 
 nounced it in such scathing terms, the writer has no 
 means of determining, but no one doubts that just sudi 
 conditions existed then in England and exist yet. The 
 bank deposits in one city are several times as much as 
 the whole personal property assessment of all the coun- 
 ty. The assessor dwarfs values. The framers of the 
 Constitution knew this. 
 
 Read the Constitution of Alissouri, adopted in 1875, 
 in the light of the histor>^ of the State, the legal and 
 constitutional history of the State, up to that time. 
 
 The framers of the Constitution of Missouri of 
 1875 knew what the people of this State had been doing 
 ever since the admission of the State into the Union, 
 just what Hugh Latimer, the reformer, so vigorously 
 condemned 350 years before. They knew, too, that 
 county courts, city, town and village councils were to- 
 tally unfit anid unsafe persons to issue bonds or incur 
 debts for public improvements. Hence, in the new 
 Constitution they were limited in their debt making 
 power to five per cent of the assessed value of the prop- 
 erty. The framers of the Constitution well knew of 
 the keen, sharj), decisive, over-weening anxiety of city 
 and town councils to spend money and incur debt. The 
 framers of the Constitution were apprehensive that 
 cities, towns and villages might be very anxious to in- 
 cur debts for public improvements, and this over-ween- 
 ing anxiety might prompt them to make a very high as- 
 sessment. The city assessment cannot exceed in 
 amount the state and county assessment. Gentle read- 
 er, did you ever know a city assessment to be less than 
 that? The city makes the assessment the highest pos- 
 sible; then the city levies the highest possible rate. And 
 every city, after making the highest assessment possi-
 
 248 Law of Local Taxation. [Chap. 9 
 
 ble and after le\ymg the highest rate possible, has 
 nothing left to improve streets. 
 
 Kansas City has 177 miles of streets, including 48 
 miles yet to be condemned or dedicated. This estimate 
 takes no accomut of alleys. The city can improve these 
 streets and pay for such improvement in two ways: 
 first, out of the general revenue; second, by tax-bill 
 on abutting property. Except in front of public squares 
 and in front of parks, the city has not paid for one 
 hundred yards of street improvement ini thirty years, 
 out of the general revenue. 
 
 It was the boast of the people of Missouri, and of 
 the framers of the Constitution of 1875 that here the 
 private property of the citizen was placed under judic- 
 ial protection against all efforts on the part of the gov- 
 ernment to wrest it from him, except for public use 
 upon just compensation made, and that private prop- 
 erty here had a protection wholly unknown to the le- 
 gal systems of Europe. "Private property shall not 
 be taken or damaged for public use. ' ' They supposed, 
 really, that they were in 1875 giving greater security 
 to private property as against the public than had been 
 known before. The power of the Legislature over bonds 
 and other debts for railroads and other public improve- 
 ments (including taxation resulting therefrom) ; the 
 power of the county court, the city council, the town 
 oouncil over railroad aid bonds and taxation from that 
 source, had been curtailed and finally taken away in 
 1875, By their conduct thus evinced, the framers of 
 the Constitution of 1875, when they proposed this Con- 
 stitution, and the people of the State of Missouri when 
 they adopted it, did not evince a very strong, abiding 
 faith or confidence in the morals of the Legislature, or 
 of the county court, or the city or town councils, in the 
 matter of railway aid bonds and taxation for public im- 
 provements.
 
 Giap. i>] History and Our Constitutions. 24:9 
 
 "Local assessments are constitiitioiixil only when 
 imposed to jmy for local imi)rovements conferring 
 special benefits." The state Legislature, the city, to^m 
 and village comicil, could not then detennine these 
 special benefits. That was a rule of constitutional law 
 then. It was not intended by the franiers of the Con- 
 stitution of 1875 when they proix)sed this Constitution ; 
 it was not intended by the people of the State when 
 they adopted it, to convert the boasted .\jnerican consti- 
 tutional rule into the merely moral rule of the consti- 
 tutions of Europe. "Thou shalt not steal," was in- 
 tended to apply to the public as well as to individuals. 
 It was not intended to convert that connnand into a 
 mere moral rule. That boasted provision of the Con- 
 stitution has now become a mere moral inile for the 
 guidance of the thief, the public, the city, town or vil- 
 lage council. 
 
 The people of the State, by the Constitution of 
 1875, decided that our state Legislatures, our county 
 courts, our city, town and village councils, were unfit 
 and imsafe depositaries of this power— this unlimited, 
 limitless power — to contract debts and levy taxes to 
 build roads and railroads. 
 
 The depositaries of this power, the legislatures, 
 the comity courts, the city, town and village councils, 
 were largely made up (as would seem to be the general 
 concensus of opinion) of knaves, and those not knaves 
 were mostly fools, and both classes were unsafe depos- 
 itaries of this power, and hence it was taken away. And 
 it was never intended to allow a power worse in its con- 
 sequences to remain with the same distrusted deposi- 
 taries to be exercised against abutting lots on a street 
 for building the road or street. Some comparisons fol- 
 low.
 
 CHAPTER 10. 
 
 SOME COMPARISONS. 
 
 I presume every one is acquainted with the history 
 of Missouri under the Constitution of 1820, and subse- 
 quent constitutions of this and other states on the ques- 
 tion of aidinig public imi>roveinents. In 1865 Missouri 
 ceased to issue state bonds for public improvements. 
 This State then ceased to loan the state credit in aid of 
 public improvements. The people of the State in 1865 
 by her Constitution put a limit on the power of the 
 Legislature to authorize cities, towns, villages and 
 counties to aid railroads and roads. The power to aid 
 railroads and roads, and take stock in railroads and 
 roads, was taken away entirely from the state Legisla- 
 ture. The county court for the county and the unor- 
 ganized strip of land, the city, town and village coun- 
 cil could no longer he authorized to make bonds or in- 
 cur debts for public improvements or in aid of public 
 improvements unless there was the two-thirds vote. 
 
 In ten years that became very unsatisfactory. Mu- 
 nicipalities became largely in debt for public improve- 
 ments, perhaps never made, and in 1875 Missouri by 
 her Constitution of that year took away that power en- 
 tirely, so that after that year, no difference what might 
 be the value of a railroad to a county, city, town or vil- 
 lage, bonds could not be issued for stock in railroads or 
 to lend credit to railroads. The municipal bond was 
 valid in the hands of a purchaser for value without no- 
 tice, but the tax-bill is valid in the hands of the original 
 wi'ongdoer who takes a contract to violate the Consti- 
 tution — to do that which the Constitution says shall not 
 
 (250)
 
 Chap. 10] Some Comparisons. 251 
 
 be done (Private property shall not be taken or dam- 
 aged for i)ublic use without just com])ensation), and 
 then this statute law authorizes a sale of the damaged 
 proj>erty to pay the contract price to do the damage, or 
 the contract is good if there is no benefit or even if 
 there be a damage. No court has ever yet held valid a 
 municipal bond given for performance of an act pro- 
 hibited by the Constitution. The doctrine is monstrous. 
 The Czar of Hell, all the arch-fiends and devils of Hell 
 combined could not do worse ! 
 
 In Zoeller v. Kellogg, 4 Mo. App. 163, we do not 
 know what the value of the land was before the work 
 was done for which the tax-bills were issued, but after 
 the improvement it was worth $1,025, while the tax-bill 
 was $1,688. Here is the actual value found by the 
 court, $1,025. This tax-bill is one hundred and sixty- 
 three per cent of the value of the land and of all value 
 added by the improvement. The reader has never 
 known or heard of any county, city, town or village is- 
 suing railroad bonds to the extent of one hundred and 
 sixty-three \)eY cent of the actual value of all the real, 
 personal and mixed property of all the inliabitants of 
 the entire county, city, town or village. If we sup|X>se 
 the land was benefited one hundred ]ier cent, then the 
 lot was worth $512.50, and benefit $512.50, making the 
 $1,025 value. After the contractor received one hun- 
 dred per cent of the value of the land and one hun- 
 dred per cent of the value of the benefit, he 
 ought to have been satisfied, but he was not. 
 He got judgment for sixty- three ]^er cent more 
 on land and benefit. This rate never was ex- 
 ceeded or eipialed by any city, town or village in Mis- 
 souri or in Kansas or Colorado (not even by any coun- 
 ty, city, town or village laid off am'wliere in the prairie 
 grass, or in the buffalo grass, or in the sage brush coun^ 
 ti-^', or in the alkali districts). I do not believe that the
 
 252 Law of Local. Taxation. [Chap. 10 
 
 framers of the Constitution of 1875 ever intended that 
 this "tax on benefits" should ever equal or exceed one 
 hundred per cent of the value of the land and one hun- 
 dred per cent of the value of the benefit added. We 
 have seen that the same rate of taxation extended to 
 the entire State would absorb all the real, personal and 
 mixed property of the State (not a man in the State 
 would have a shirt on his back) and then the contrac- 
 tor, after he had gotten all the real, personal and mixed 
 property in tlie State, would be short (poor fellow!) 
 567 millions of dollars. The state Legislature never is- 
 sued bonds to this extent, nor did any county, city or 
 town, nor was credit ever loaned to that extent. One 
 instance occurred in Kansas City where the tax bill 
 was $700 and the lot was worth, after all inaprovenuents 
 were made, $400. This case was instanced in 1905, be- 
 fore the thirteen free-holders framing a new charter 
 for Kansas City. Here was a tax of one hundred and 
 seventy-five per cent on the original value of the lot, 
 with one hundred and seventy-five per cent of the bene- 
 fit added. It was not stated what the lot was worth be- 
 fore the work was done which occasioned this presump- 
 tive benefit of one hundred and seventy-five i3er cent of 
 original value with one hundred and seventy-five per 
 cent of the benefit added. The State of Missouri never 
 made such a fatal mistake in issuing railroad aid bonds 
 or lending its credit for public improvements. No 
 county, city, town or village in this or any other state 
 or territory ever loaned credit or issued public im- 
 provement bonds to that damaging extent. 
 
 Besides, any one at all coversant with public im- 
 provements in any city will recognize the estimate of 
 $700 as too low. If we estimate the comer lot as 25 by 
 150 feet, then we have 175 feet front to pave at five dol- 
 lars per front foot, 185 feet curbing at 50 cents, 185 feet 
 sidewalk at $1, sewer $40, trees $12.50, total $1,200, in
 
 Chap. 10] Some Comparisons. 253 
 
 place of $700. Then the lot was worth $400. Then the 
 lot was worth originally $8(X) less than nothing. It 
 was $800 below zero, and that was a very cold day for 
 that lot-owner. A lawyer, even, would not want to take 
 for his fee a lot worth $800 below zero. Put the lot up 
 and sell it for what it is worth and it will pay thirty- 
 three and one- third per cent of the special taxes 
 against it, not allowing anything for costs of sale, ab- 
 stract, certificates of judgments. Pay these costs and 
 the property-owner will get nothing and the tax-bill 
 holders will get less than thirty per cent of the tax- 
 bills. The gentle reader must not forget this tax is no 
 burden on the real estate owner, but just tliink of the 
 poor tax-bill holder who gets only thirty i^er cent of 
 his money! Before the board of freeholders in Kan- 
 sas City it was stated that "countless numbers of cor- 
 ner lots have been eaten up with special taxes, and the 
 owners have given them up rather than make the pay- 
 ments assessed against them for improvements." And 
 this was true then, and is now, in the whole United 
 States. In the case above referred to, where the public 
 improvements are really $1,200 in place of $700, take 
 the corner lot and the next four lots, 25 by 150 feet 
 making 125 feet by 150 feet. The cost of the public im- 
 provement will be, at this rate, $1,800 for the five lots. 
 If we count the corner lot as worth $400, this will leave 
 $1,400 to be paid by four lots, or three hundred and 
 fifty dollars each. If an improved corner is worth $4(X>, 
 the improved inside lots ought to be worth $350 each. 
 The contractor will thus be made whole except in the 
 matter of attorneys' fees, and it will be necessary to 
 give the contractor another 25 foot lot, and then with 
 rigid economy the contractor might come out even. As 
 to the owners of the six lots this tax is no burden. But 
 let us make further comparisons. Public improve- 
 ments on comer 150 feet will cost $18 per front foot.
 
 254 Law of Local Taxation. [Chap. 10 
 
 The assessed values of all lands in Kansas City exclus- 
 ive of improvements thereon, have run thus for the 
 years indicated : 
 
 A. D. 1904 $36,641,430 
 
 A. D. 1900 $36,159,800 
 
 A. D. 1886 $31,169,190 
 
 The streets in Kansas City are thus in length: 
 Streets dedicated or condemned, 128.7 miles ; streets to 
 be dedicated or condemned, 48 miles; total, in round 
 numbers, 177 miles. Nmnber of tracts in Kansas City, 
 73,020. 
 
 Average assessed values were thus : 1904, assess- 
 ed value, $36,641,430, or $502 per tract; 1900', assessed 
 value, $36,159,800, or $496 per tract, an increase in 
 value in four years equal to one and thirteen sixty-sec- 
 onds of one per cent or seventy-five two hundred and 
 forty-eighths of one per cent per year. 
 
 Now let us count the cost of public improvements 
 for Kansas City. Counting paving at five dollars per 
 front foot, sewers at one dollar and fifty cents per 
 front foot, sidewalks at one dollar per front foot, and 
 curbing at fifty cents, the cost will be thus : 
 Paving. . . .$9,329,760. 25.7 per cent of assessed value. 
 Sewers. . . .$2,798,928, 7.6 per cent of assessed value. 
 Curbing. . . .$932,976. 2.54 per cent of assessed value. 
 Sidewalks. $1,865,952. 5.08 per cent of assessed value. 
 Total cost . $14,927,616. 40.7 per cent of assessed value. 
 This counts nothing for grading. 
 If we count these public improvements to last ten 
 years, then we have a tax of 4.07 per cent per annum. 
 
 Add state tax 15 per cent 
 
 County tax 35 per cent 
 
 School 1.00' per cent 
 
 General city tax 1.00 per cent 
 
 Public improvements 4.07 per cent 
 
 Total tax 6.57 per cent
 
 Chap. 10] Some Compakisons. 255 
 
 The improveinont is paid for in advance. If we 
 count interest at four per cent on the cost of the im- 
 provement, for it lasts ten years and is paid for in ad- 
 vance, we must add 1.63 per cent to above 4.07 per cent 
 making an annual tax on assessed v^alue of 5.7 per cent 
 as taxes on the assessed values of real estate, exclusive 
 of improvements and not including general city taxes 
 or general state and county taxes. Pave the alleys 
 with the same material as the street and the cost will 
 be $950,400, making a total cost of public improve- 
 ments, exclusive of grading and parks, $15,878,016. 
 This is forty-three and one-third per cent of the assess- 
 ed valuation of all the land in Kansas City, exclusive 
 of improvements thereon. Counting ten years as the 
 life of a pavement, this is four and one-third per cent 
 per year. This payment is made in advance, and 
 counting interest at four per cent per annium makes for 
 the ten years seventeen and one-third i^er c^nt addi- 
 tional, or about sLxty-one per cent for ten years, or six 
 and one-tenth per cent per annum on the assessed value 
 of lands exclusive of improvements thereon. This does 
 not include any park taxes or grading taxes or benefits 
 to pay for damages for grading. Adding state tax, 
 county tax, school tax and general city tax makes a land 
 tax of eight and one-half per cent per annum. This 
 leaves out the county bond tax. This is nearly fifty- 
 seven times as much as the state tax. Under section 
 12, article 10 of the state Constitution of Missouri, 
 adopted in 1875, the greatest amount of debt that can 
 in any event be incurred is five per cent of the assessed 
 value of all the property in the county, and that must 
 be paid by a sinking fund pro\nded for in twenty years, 
 or one-fourth of one per cent per annum. Here is a tax 
 per annum thirty-four times as much. At the end of 
 ten years all the public improvements are worn out
 
 256 Law op Local Taxation. [Chap. 10 
 
 and they must be renewed at the same cost. Municipal 
 bonds never made such high taxes. 
 
 You will have noticed that the assessed value of 
 land, exclusive of improvements thereon, was for the 
 year 1904, $36,641,430; 1900, $36,159,800. Increase in 
 value for the four years, $481,630, or $120,407 per year. 
 This would improve 5.7 miles of street in four years or 
 1.4 miles per year. At that rate of increase in value, it 
 would take 127 years to put in the public improvements 
 in Kansas City which would last ten years. Kansas 
 City had 73,020 tracts of land in 1904. The average 
 value per tract in 1904 was $502, and in 190O it was 
 $496, being six dollars increase in value per tract for 
 four years, or $1.50 per tract per year. We have 
 spoken of the $1,200 special taxes against the comer lot 
 25 by 150 feet. The average increase in value per tract 
 per year being $1.50, it would take 800 average tracts 
 to pay the special taxes on this lot, or it would require 
 all this average increase in value for 800 years to pay 
 these special taxes. 
 
 The per cent of increase in four years is one and 
 thirteen sixty-secondths per cent for four years, or 
 seventy-five two hundred and forty-eighths of one per 
 cent per annum. This is less than one-third of one per 
 cent. We have seen that all Kansas City can be im^ 
 provedi with the improvements required for about six- 
 ty-one per cent for ten years, or six per cent per year 
 on the assessed value. In the minds of the framers of 
 the Missouri Constitution of 1875, and in the minds of 
 the people of the State who adopted that Constitution, 
 a debt to be paid by general taxation could not, under 
 any circumstances, be contracted exceeding five per 
 cent of the assessed value of all the property in the 
 county, city or town, and that was payable in twenty 
 years by a tax levied each year or one-fourth of one 
 per cent per year, yet here is a tax of six per cent per
 
 Chap. 10] Some Comparisons. 257 
 
 year or twenty-four times as muoli. Beyond onie-fourth 
 of one per cent per year for a debt was a burden not to 
 be endured under any circumstances whatever, and yet 
 six per cent per year is not a burden. Take lot 1 in 
 block 2 in Coleman Place in Kansas City. Assessed 
 value for 1904- was $486. Assessed value for 1902 was 
 $460. Special taxes one year $1,125. A similar tax on 
 the other real estate of Kansas City, exclusive of im- 
 provements thereon, would i:)roduce the sum of $85,- 
 496,333. Four per cent of this sum would be $3,419,853, 
 enough to pay for all our parks. This lot was 34 by 132 
 feet, making 166 feet front. This would be only seven 
 dollars per foot front, i. e., counting 166 feet as the 
 front ; but $33 per front foot if we count 34 feet as the 
 front. This does not include park taxes. This lot was 
 worth $742 below zero, or twenty-two dollars and fifty 
 cents per front foot below zero. This tax is no burden. 
 In case all the property (real estate) in Kansas City 
 should be improved like this real estate in Coleman 
 Place, then Kansas City would be short on the tax on 
 lands, exclusive of improvements, $48,854,903. 
 
 Take lot 56, Windsor, in Kansas City. The lot is 
 30 by 150 feet and on a boulevard. It is a comer. As- 
 sessed value of land exclusive of improvements for 
 1904 was $720. The special taxes levied and paid prior 
 to 1904 were about $1,950. They came in rapid succes- 
 sion. Put a similar tax on all land in Kansas City and 
 it would produce from land values alone $99,237,206. 
 The gentle reader must bear in mind that this tax is no 
 burden. This tax would be $62,595,776 more than the 
 entire assessed value of all the land in Kansas City, ex- 
 clusive of improvements. If we say the land was as- 
 sessed at forty per cent of its real value, if the contrac- 
 tor takes the land at its real value he will be short 
 $2,633,631. And the poor contractor will have to lose 
 it! 
 
 17
 
 258 Law of Local Taxation. [Chap. 10 
 
 See how this law operates on comer lots. We pro- 
 ceed on the lines already suggested. Take thirty-two 
 comers. This would be eight blocks on each side. Im- 
 prove sixteen of these corner lots with a sixteen-hun- 
 dred dollar house. Then we have 
 
 16 houses at $1,600, equal to $25,600 
 
 16 lots improved at $400, each equal to .... 6,400 
 16 lots unimproved at $400, each equal to . . 6,400 
 
 Total value $38,400 
 
 If the tax-bills are $1,200 on each lot the contrac- 
 tor comes out even. The owners of the vacant lots lose 
 their lots with original value and added value, and the 
 owners of the houses, costing $1,600 each, lose their 
 houses worth $25,600, and their lots worth $400 each, 
 equal to $6,400. The contractor lost $800 on each va- 
 cant lot of the sixteen, and he made up his loss by the 
 sixteen houses at $1,600 each. 
 
 Take lot 56, Windsor. Land is assessed at $720, 
 with all benefits added, the special taxes being $1,950. 
 If the owner puts up a house worth $1,230, then the 
 land ($720) and house ($1,230) equal $1,950. The tax- 
 bill holder gets one hundred per cent of the original 
 value of the land and one hundred per cent of the in- 
 creased value of the land and one himdred per cent of 
 the value of the houses and the public get the highly 
 costly street for nothing. *'Tell me whether this be 
 theft or no!" 
 
 In the actual case above cited, and the supposed 
 case, the property was not damaged. There was 
 some "benefit," but the original value of the land and 
 the houses and the benefit all added together were less 
 than the tax-bills. 
 
 The question is one solely of power. If the power 
 to do the forbidden thing exists, then the question is 
 settled. To say that the power is abused is to beg the 
 question. A power that does not exist cannot be
 
 Chap. 10] Some Comparisons. 259 
 
 abused. Every legislative enactment made without 
 constitutional power or against a prohibition, is and 
 ought to be void. 
 
 We have seen that a $2,750 damage to Mrs. Smith's 
 lot was a three-hundred-dollar benefit to her and her 
 lot. 
 
 If they will only hang a few property-owners, the 
 benefits to such property-owners so hung would be am- 
 ply sufficient to pay off the national and state debts.
 
 CHAPTElR 11. 
 
 PUETHEH CHANGES. 
 
 Within the last ten years further fundamental 
 changes have occuiTed in the law of loca' taxation. Lo- 
 cal benefit was formerly regarded as the sole ground or 
 authority for the local tax. The Missouri Supreme 
 Court state the principles on which this tax is founded, 
 through Judge Leonard, in Lockiuood et al. v. St. Louis 
 24 Mo. 20 (A. D. 1856), in a suit to enjoin the collection 
 of a tax of one-half of one per cent to build sewers in a 
 portion of St. Louis, under an act of the T legislature of 
 Missouri. After observing that these taxes prevailed 
 under the English Law, the court say : 
 
 "Their intrinsic justice strikes every one. If an 
 improvement is to be made, the benefit of which is lo- 
 cal, it is but just that the property benefited should 
 bear the burden. A^^iile the few ought not to be taxed 
 for the benefit of the whole, the whole ought not to be 
 taxed for the few. A single township in a county 
 ought not to bear the whole county expenses, neither 
 ought the whole county to be taxed for the benefit of a 
 single township; and the same principles require that 
 taxation for a local object, beneficial only to a portion 
 of a town or city, should be upon that part only. Gen- 
 eral taxation for a mere local purpose is unjust; it bur- 
 dens those who are not benefited, and benefits those 
 who are exempt from the burden. ' ' 
 
 A local tax which was only a general benefit was 
 unconstitutional. When the Constitution was changed 
 so as to prohibit damaging private property for pub- 
 lic use as well as taking, the tax became valid if it was 
 
 (260)
 
 Cba]). 11 J Further Changes. 261 
 
 for work which occasioned a do mage. The si)ecial, pe- 
 culiar, exceptive benefit ceased to be nec^ssaiy to tlie 
 constitutional validity of the tax. A general benefit 
 ceased to render the tax unconstitutional. If there was 
 a general damage, the tax was constitutional. Now the 
 latest determinations are that the courts can not inquire 
 into the question. The legislative determination is 
 conclusive. 
 
 'Must comi)ensation for taking as well as damag- 
 ing private property for public use shall be ascertain- 
 ed by a jury or board of commissioners. ' ' In requiring 
 a jury a judicial proceeding seems to be aimed at but 
 we now proceed to show by what steps this portion of 
 the Constitution of Missouri is unconstitutional ac^^ord- 
 ing to the Constitution of Missouri, and courts and jur- 
 ies aod commissioners are dispensed with. The whole 
 power is in the Legislature (common council of cities) 
 and the legislative determination is conclusive. This 
 determination ought to be judicial and when such duty 
 is devolved on the Legislature it is made to tiy to ac- 
 complish impossibilities. 
 
 Let us notice some inconsistencies into which we 
 are driven by this theor>^ of the conclusiveness of this 
 legislative determination of benefits, both as to fact and 
 amount. 
 
 In every State of the Union, streets, avenues and 
 highways may be improved at the expense of the abut- 
 ting property, even if the improvement be no benefit to 
 the property taxed, or even a damage forbidden by the 
 Constitution. In such case, notwithstanding the posi- 
 tive prohibition against the work occasioning the dam- 
 age, the damaged property liiay be taxed to the entire 
 extent of the whole value of the land and all buildings 
 thereon. 
 
 Look at the inconsistencies. It will plainly appear 
 in mathematics that the tea tax of the Revolution was
 
 262 Law of Local Taxation. [Chap. 11 
 
 (0) zero and this tax infinity 8. We have the relation 
 between zero and infinity. 
 
 In State of Missouri ex rel. v. Le/fingivell et al., 
 54 Mo. 458 at 473, Wagner, Judge (in an opinion con- 
 curred in by Judges Vories and Adams, Judge Nap- 
 ton not sitting and Judge Sherwood absent), says : 
 
 "In the construction of the Constitution I am un- 
 willing to apply to it those elastic i^rinciples which will 
 make it extend any required length to accomplish an 
 end or purpose. Unless some regard is paid to the in- 
 junctions of our organic law, written constitutions of 
 government will be regarded as of no value and the ex- 
 periment of setting a boundary to capricious and arbi- 
 trary power will be a complete failure." Again con- 
 tinuing, the same judge says : ' ' Nothing is better set- 
 tled than that special taxation for objects that are gen- 
 eral and public is illegal." Again, page 475: ''The 
 Constitution has wisely erected a barrier against this 
 exorbitant ji^ower, and there is a time in the tide of this 
 special taxation when it must be said, thus far shalt 
 thou go and no farther." 
 
 "Local assessments are constitutional only when 
 imposed to pay for local improvements conferring 
 special benefits." These are the words of the same 
 judge in the same opinion, almost in the same sentence. 
 It was certainly intended to be affirmed by the court 
 that there was then (in the year A. D. 1873) a consti- 
 tutional barrier against local taxation. Wliere is it 
 now? We had it in 1873. What has become of it? 
 AVhat clause or provision in the Constitution of Mis- 
 souri in 1875 removed this barrier? Was it ever in- 
 tended to change the language of the court so as to read 
 thus: "Local assessments are constitutional only when 
 imposed to pay for local improvements conferring 
 special damages. " If by fraud, accident or mistake the 
 work for which a special tax-bill is issued should be a
 
 Chap. 11] Further Changes. 263 
 
 special, peculiar, exceptive, benefit or a general bene- 
 fit, or if it should be absolutely neutral, then the tax- 
 bill is void ; but it is a valid tax if the work occasion a 
 special damage (as for instance $?,750 to Mrs. Smith, 
 that being her adjudicated damage for which she had 
 to pay $300 to the contractor who did the damage). 
 Say tlie court througli Adams, J., at page 477 : 
 
 "The question in regard to taxing a particular lo- 
 cality for general purposes, is sufiieiently discussed in 
 the opinion under review. Private property cannot be 
 taken for public use without just compensation. Spec- 
 ial benefits cannot form any part of such compensation 
 unless they attach to and become a part of the taxed 
 property. The phrase 'special benefits' is a misnomer 
 as applied here. A lot-holder has a property interest 
 or easement in the adjoining street independent of the 
 general public, and the improvement of the street may 
 be a special benefit or an absolute injury to his lot. If 
 it be a benefit he must pay for it, and a special tax may 
 be levied on his lot for that purpose. But adjacent 
 property-holders can have no easement or proi^erty 
 right whatever in a park. Their interest is precisely 
 the same as all other citizens, and a tax upon them is 
 only a thin guise for confiscating their property with- 
 out any just compensation." 
 
 Such a tax was then unconstitutional ; what makes 
 it constitutional now? I am aware of what was said in 
 Kansas City v. Ward, 134 Mo. 172, at 178-9. That case 
 admits that there can be no local tax for a park unless 
 there is a special benefit to the land taxed. But in this 
 latter case the court say the person whose land is ben- 
 efited by a park must pay the benefit tax, and then he 
 has no interest in the ]iark he has in part paid for. Pub- 
 lic parks are a local affair almost exclusively. Tlie pul>- 
 lic have no interest in them ; it is a matter of very small 
 concern. The courts and juries here have been required
 
 '264 Law of Local Taxation. [Chap. 11 
 
 to estimate the value of each park to the public in gen- 
 eral, and this has to be paid first and then special ben- 
 efits to each parcel of land is ascertained and assessed 
 on the land. Public parks are here worth only a dollar 
 each. Boulevards one dollar each. They cost more, 
 but that is all they are worth to the city. It will take 
 two or three parks to pay for your Christmas turkey. 
 One live hog in the Kansas City market at the stock 
 yards is worth more than all the parks in Kansas City 
 and St. Louis, and the hog would be a scrub at that. 
 Think of the small value the city or public get. A 
 dead cholera hog is worth more to the dead-animal man 
 than any park or boulevard in Kansas City and St. 
 Louis. A sow and pigs, even if they are Arkansas wind- 
 splitters, are worth more than all the boulevards of 
 Kansas City and St. Louis. 
 
 But even according to the case of Kansas City v. 
 Ward, supra, there must be a benefit special, peculiar, 
 exceptive. It is not said here that the Legislature can 
 determine the fact and amount of benefit. That must 
 be done by court and jnry. ''A lot-holder has a prop- 
 erty interest or easement in the adjoining street w- 
 depe-ndent of the general public, and the improvement 
 of the street may be a special benefit or an absolute in- 
 juiy to his lot." I believe the court, in Kansas City v. 
 Ward, did not intend to overrule this portion of the 
 opinion. 
 
 The improvement of the street may be a special 
 benefit or an absolute injury to his lot. It was not then 
 generally known among jurists and property-owners 
 that the legislative determination to make a given pub- 
 lic improvement was conclusive on the property-owner 
 that it was a benefit, and of course could not be an in- 
 jury. In place of being ''damnum absque injuria," it 
 was a benefit. Here are two interests : the public in- 
 terest and the private interest. These interests may be
 
 Chap. 11] Further Changes. 265 
 
 in conflict. What b<^nefits one, may damage the other, 
 even if it be ''damnum absque injuria" as to the indi- 
 vidual. Here are two necessities for consideration, tlie 
 public necessity and the ])rivate necessity. The prop- 
 erty-owner ouglit to be left free to improve his riglit of 
 way appurtenant to his land. He may want that way 
 smooth and level, or steep to throw off the water. Let 
 him judge of his own necessities and supply them as 
 he deem,s best. At the time of this decision (54 Mo. 
 supra) it was not supposed that a local tax could, with- 
 out the owner's consent, be levied on the damaged 
 property to pay for the work of damaging the property. 
 The ])ublic should l)e left free to determine what is nee- 
 essary^ for the public, but it ought not to be allowed to 
 determine what is a necessity to the individual, either 
 to his house or the road or way to get to it. But this 
 law makes the common council agent for the public and 
 for the lot-owner. AVlien the public interest conflicts 
 with the private interests, the council ought to be or 
 may be agent for either, but ought not to be agent for 
 both. The council cannot serve God and mammon. Je- 
 sus Christ has told us that no man can sen-e two mas- 
 ters. He will love one and hate the other. The city 
 contractor will get all the love and the property-owner 
 will get the hatred. 
 
 The property-owner may insist on determining his 
 own necessities in reference to his own right of way, 
 but these public agents decide these conflicting claims, 
 not as a judge of a court impartially and according to 
 law and e\^dence, but as a legislative body. These 
 agents cannot serve two principals having conflicting 
 interests. It cannot be done. The judgment of Jesus 
 Christ on this matter was excellent and commends it- 
 self to the good sense of all. To this writer it is a source 
 of sincere regret that the courts should reverse the 
 judgment of Jesus Christ. We sincerely regret that
 
 266 Law of Local Taxation. [Chap. 11 
 
 His decision has been oven-uled and that the common 
 councils of our cities, towns and villages are still com- 
 pelled to try to ride two horses at the same time, going: 
 in opposite directions. 
 
 In Neivhy v. Platte County, 25 Mo. 258, at 261, 
 Judge Leonard, rendering the opinion of the court on 
 this tax power, says : 
 
 ''No principle of English jurisprudence is better 
 settled than that an indi\adual cannot be deprived of 
 his property except for the public use and for a just 
 compensation, and the British parliament accordingly 
 never authorized one individual's property to be taken 
 for the private benefit of another upon any terms, nor 
 for the public use, without first providing a just equiv- 
 alent for the owner." [1 Black Com. 139.] The em- 
 phatic declaration of the French law (Civil Code, 545) 
 is, that "No one can be compelled to give up his prop- 
 ert}' [Evidently no local taxes there] except for 
 the public use and for a just and previous indem- 
 nit}^ ' ' And an anecdote by DeTott in his Memoirs of 
 the Turkish Government shows that the same principle 
 is equally respected in that despotic government. 
 
 The Sultan Mustapha, being desirous of building 
 and endowing a new mosque, fixed upon a spot in the 
 city of Constantinople which belonged to a number of 
 individuals, and treated with them for the purchase of 
 their parts. They all complied with his wishes except a 
 Jew who owned a small house on the place and who re- 
 fused to part with it for any price. The Sultan con- 
 sulted his Mufti, and they answered that private prop- 
 erty was sacred, and that the laws of the Prophet for- 
 bade his taking it absolutely, but that he might compel 
 the Jew to lease it to him as long as he pleased at a full 
 rent. The Sultan submitted to the law.
 
 Chap. 11] Further Changes. 267 
 
 "But in Europe, this principle is in referencMi to 
 the ax3tion of the government, a mere moral rule, impos- 
 mg no legal restrictions upon the legislative authority, 
 while the American people, by incoi-porating it into 
 their Constitution and making it a rule of constitu- 
 tional law of superior obligation to the enactments of 
 the legislative department, have placed private prop- 
 erty under judicial protection, against all efforts on 
 the part of the government to take it from the owner, 
 except under the circumstances and upon the terms rec- 
 ognized as just and proper by the general sense of man- 
 kind and the uniform practice of civilized nations; and 
 they have thus given to private property a security al- 
 together unknowm to the legal systems of Europe. Our 
 constitutional provision, it is true, does not, like the 
 declaration of the French law, prohibit in express 
 terms the taking of private property in any case except 
 for the use of the public, so as directly to deny to the 
 Legislature the power of transferring property from 
 one person to another for any mere private pur^oose, 
 yet all this is sufficiently implied; and accordingly in 
 the construction of the provision it is always assumed 
 that there must be not merely a just compensation, but 
 that the use to which the property taken is to be applied 
 must be a public use in order to authorize the exercise 
 of the power. ' ' 
 
 The rule of constitutional law has certainly been 
 changed since July, 1857, when this opinion was deliv- 
 ered. AVe have discarded the rule there laid down and 
 adopted the rule of European constitutional law. The 
 rule is one of morals for the guidance of the legislative 
 power vested in our city, town and village councils. The 
 reader may have noticed nnmicipal governments in the 
 United States for thirty or forty years past. These lo- 
 cal governments are supposed to be corrupt. Munici-
 
 268 Law of Local. Taxation. [Chap. 11 
 
 pal charters are tlie occasion of these rotten govern- 
 ments and they have occasioned more injury than all 
 the Empsous and Dudleys of English history. 
 
 Projjerty-owners, think of it ! You hold your city 
 property under and by the moral sense of our city leg- 
 islature. These city legislatures are not governed by 
 the Constitution. Think of the slender thread (a rotten 
 one at that) by which you hold your property. Your 
 right to hold city real estate is reduced to this exceed- 
 ingly attenuated shadow. For several centuries it has 
 been a favorite theory of publicists and writers on in- 
 ternational law that if all the thieves were put on an is- 
 land, fertile in all resources for human needs, sur- 
 rounded with ships of war to prevent any possible es- 
 cape, and if they were supplied with all implements of 
 industry, they would soon make and enforce laws 
 against stealing and in favor of honesty. We ought all 
 of us to congratulate ourselves on our near approach 
 to the long-expected— the long-looked- for millennium. 
 
 In all the states the constitutional provision is that 
 private property shall not be taken or damaged for 
 public use without just compensation paid in advance 
 to the owner or into court for the owner. These ques- 
 tions arise: Who is owner? Wliat is compensation? 
 What compensation is just? What is a taking? What 
 is a damaging? Can the common council of any city 
 detennine who is owner of certain land within the cor- 
 porate limits so as to bind all claimants and prevent 
 any other incjuir}^ on that question, in the courts? Can 
 the comlmon council determine that the compensation 
 is just or that there is just compensiation, or that the 
 land is not taken or that the land is not damaged, 
 whether there is a damage or not, is that a question for 
 the common council or the court? What is the meaning 
 of the Constitution on this point? If the common coun- 
 cil can determine that the thing done or proposed is a
 
 Chap. 11] Further Changes. 269 
 
 benefit, then it cannot be a damage. Property cannot 
 be damaged by a benefit or l>eiiefited by a damage. 
 
 In Barber Asphalt Paving Company v. French, 
 158 Mo. 534, the invalidity of the special charter of 
 Kansas City was especially pleaded; the answer set up 
 that the charter pretended to authorize, and in form 
 authorized, the improvement of a street and an assess- 
 ment of the cost thereof (not benefit) on the adjoining 
 property according to frontage, whether benefited or 
 not ; and in cases where the property was in fact dam- 
 aged, and that to the extent of the excess of the cost of 
 the work over and above the special benefits to the ad- 
 joining ]iroperty the assessment constituted a taking of 
 private proi^erty for public use without just compensa- 
 tion ; and that such taldng of private property for pub- 
 lic use without just compensation constituted a case 
 wherein the State of Missouri, through the Kansas 
 City Charter, deprived the citizen of his property with- 
 out due process of law. The plaintiff offered evidence 
 that these lots were benefited to the extent of the cost 
 of the work; this evidence was objected to as incompe- 
 tent; the objections were overruled and this was as- 
 signed for error in the court above (Supreme Court of 
 Missouri). 
 
 In passing on this question the Supreme Court of 
 Missouri say (158 Mo. 534, at 556) : 
 
 ''As the assessment was made in strict compliance 
 with the charter and ordinance, we do not think the tes- 
 timony of the four witnesses to the effect that the ben- 
 efits to the lots exceeded the cost of the improvement 
 could cure the vice, if any, in the charter and the ordi- 
 nance. Plaintiff must stand or fall by the charter i>ro- 
 vision. The admission of the evidence, however, did 
 not constitute reversible error, as we hold the charter 
 and the ordinance were sufficient without the evidence 
 and would have been had it been to the contranj."
 
 270 Law of Local Taxation. [Chap. 11 
 
 Again page 553 say the court : 
 
 "At that time [Davidson v. Netv Orleans, 96 U. 
 S. 97 (A. D. 1896)] it is clear that the whole court held 
 that the fact that an assessment was for an iinprove- 
 ment, which in fact was no benetit to the property own- 
 er, did not bring the case within the fourteenth amend- 
 ment and it would be hard to conceive of a harder 
 case. ' ' 
 
 Speaking of the act of Congress involved in Par- 
 sons V. District of Columbia and the Kansas City 
 Charter, the Missouri Supreme Court, at page 551, say: 
 
 "In neither case is there any inquiry as to benefits, 
 nor is the tax levied according to actual benefit, but 
 both alike rest upon the conclusive presumption in- 
 dulged by Congress in the one case and the charter in 
 the other, that such an improvement is a benefit to the 
 abutting property." 
 
 ''Not only is this true, but the Supreme Court of 
 the United States is solemnly committed to the doctrine 
 that if the assessment actually exceeds the cost of the 
 work, it would not vitiate or annul the assessment.' ' 
 
 Again on page 548 : 
 
 "But in taxing the citizen with his proportionate 
 share of the cost of a pavement abutting on his lot, 
 there is no taking of property for public use." This of 
 course means according to the frontage of the property 
 or the area. The proportion is obtained in several 
 ways. First, it may be in proportion to the value of the 
 property taxed ; second, it may be in proportion to its 
 frontage ; third, it may be in proportion to area ; 
 fourth, it may be in proportion to the benefit ("It ought 
 to be according to the value of the benefit to be de- 
 rived," was the language of the court in 1858, in Egyp- 
 tian Levee Company v. Hardin, 27 Mo. 495, at 496, near 
 the bottom of the page). 
 
 If we adopt the rule above enunciated, "according
 
 Chap. 11] Further Changes. 271 
 
 to the value of the benefit to )xi derived," then by the 
 constniction jmt on the language of the law the bene- 
 fit must be special, peculiar, exceptive, and a general 
 benefit will not support the tax. Such tax will be tak- 
 ing private property for ])ublic use without just com- 
 pensation. If there be no special, i)eculiar, exceptive, 
 benefit there can be no tax in case the tax is according 
 to benefit. Such tax-law would be unconstitutional in 
 that it would take private property for public use with- 
 out just compensation. Let us levy a special tax to 
 grade a street. Here the work may be, first, general 
 benefit; second, a special, peculiar, exceptive, benefit; 
 third, it may be no benefit, special or general ; fourth, 
 it may be a damage. When the statute taxes the owner 
 of abutting property or any other property, or the 
 abutting property or any other property in any one of 
 the four cases named except the second, and when a 
 sale and deed are made conveying the title, then the 
 owner has certainly lost his land — and what did he get 
 for it? But here the decision is, "There is no taking 
 of property for public use. ' ' 
 
 If the work be only a general benefit, or if it be no 
 general benefit or special benefit, or if it be a damage, 
 what possible difference does it or can it make whether 
 the tax be according to value or according to frontage 
 or according to area! Here is real estate worth $1,025. 
 Here is a tax against it of $1,488.16, with interest added 
 $1,642.55 ; what difference did it make to Ur. Kellogg 
 {Zoeller v. Kellogg, 4 Mo. App. 163) whether this tax 
 be levied on his land according to frontage or accord- 
 ing to value or according to area; by the square foot 
 or by the square yard. 
 
 Wlien they paved the street in front of Mr. Kel- 
 logg 's property, worth with the improvement $1,025; 
 when they entered a judgment against it for $1688, sold 
 it and made a deed for it conveving away Mr. Kel-
 
 272 Law of Local Taxation. [Chap. 11 
 
 logg's title, they would not have taken private property 
 for public use according to this rule of constitutional 
 law. (Of course Kellogg 's land was not sold in that 
 case; tlie judgment was that it could not be sold, but 
 this case has been overruled and the land would have 
 been sold under the present course of decision.) 
 
 In the case under consideration, 158 Mo. at 542, 
 the court say: 
 
 **In the condemnation proceeding proper [referr- 
 ing to Norwood v. Baker, 172 U. S. 269], the jurj^ as- 
 sessed her compensation at two thousand dollars and 
 that sum was paid her, and thereupon the \allage coun- 
 cil assessed her with the two thousand dollars and all 
 the costs of the condemnation, amounting to $218.58 as 
 benefits to her abutting property. The result was that 
 the village acquired her property for nothing and 
 charged her $218.58 for having deprived her of it." 
 
 How could that be if both sums were benefits? If 
 the two thousand dollars and the two hundred and eigh- 
 ten dollars and fifty-eight cents were benefits, why 
 could they not be charged against the land? [Kansas 
 City damaged Mrs. Smith's land to the extent of 
 $2,750, and made her pay three hundred dollars for do- 
 ing the damage (128 Mo. p. 23; 67 Mo. App. 205).] 
 
 The above language of our Missouri Supreme 
 Court is inaccurate and tends to mislead. Mrs. Baker 
 is charged to have been assessed ''with $2,000, and all 
 the costs of the condemnation amounting to $218.58 as 
 benefits to her abutting property.'' What possible ob- 
 jection could be urged to such proceeding if Mrs. Bak- 
 er 's property was benefited to that extent or to a great- 
 er extent, if such benefits were special, i^eculiar, excep- 
 tive? 
 
 The city council of Norwood had power to assess 
 this tax in several ways: First, as a general tax on 
 all the property of the village; second, they might as-
 
 Chap. 11] Further Changes. 273 
 
 sess it on the adjoining property according to the value 
 of the property; third, they might assess it on tlie ad- 
 joining land according to the benefit conferred on the 
 adjoining land by the improvement (and here the ben- 
 efit must be si>ecial, peculiar and exceptive) ; fourth, 
 they might assess it on the abutting property "by the 
 front foot of the property bounding and abutting upon 
 the improvement" (Nonrood v. Baker, 172 U. S. 269, 
 at 273). This $2,218,58, it is said, was ordered to "l)e 
 assessed as a benefit to her upon her land abutting uix)n 
 the land so taken" (158 Mo. 542). The tax was held 
 invalid and a sale of the land (supposed to be bene- 
 fited) was enjoined because the land was not assessed 
 according to benefit. "The result was that the village 
 acquired her land for nothing and charged her $218.58 
 for having deprived her of it." 
 
 The writer is unable to understand how it can fair- 
 ly be said "that the \illage acquired her property for 
 nothing," when the village paid her $2,000 for it, the 
 full assessed value thereof, the verdict being acquiesced 
 in both by the village of Norwood and by Mrs. Baker. 
 Mrs. Baker did not sue for the value of her land taken 
 for public use, and fixed in amount by the court and 
 jury under the laws of Ohio. If she had sued for the 
 money, the \411age of Xoi'wood would have successfully 
 pleaded and proved payment. The village "charged 
 her $218.58 for having deprived her of it" (her land). 
 
 What land did they deprive her of? Wliat land did 
 the village of Norwood acquire for nothing? Certainly 
 not the land embraced in the street and condemned, 
 for tliat was paid for in full. The strip condemned and 
 paid for was 50 by 300 feet, Mrs. Baker owning the land 
 on each side of the street. Suppose that Mrs. Ellen Jones 
 had owned this strip of land 50 by 300 feet, and it had 
 been condemned and "just compensation" assessed at 
 $2,000, and paid to ^Irs. Jones ; could it have been fair- 
 
 18
 
 274 Law of Local Taxation. [Chap. 11 
 
 ly said that the village acquired Mrs. Jones' land for 
 nothing and charged her $218.58 for having deprived 
 her of it ? Mrs. Baker's land was taken for public use 
 at a price (paid) satisfactory to her and the village of 
 Norwood. The 50 by 300 feet strip of land belonging 
 to Mrs. Baker was taken for public use but not without 
 ' ' just compensation. ' ' 
 
 It was undoubtedly taken for public use but ' ' just 
 compensation" was paid to her for it. No wrong was 
 done or attempted to be done under the power of ''em- 
 inent domain" so far as this strip of land (50 by 300 
 feet), belonging before the condemnation to Mrs. Bak- 
 er, was concerned. The private property of Mrs. Bak- 
 er, other than this 50 by 300 foot strip, was about to 
 be taken for public use without just compensation. This 
 land, so threatened to be taken for public use without 
 just compensation, was not the 50 by 300 foot strip of 
 land condemned and paid for for the avenue opened, 
 but it was the adjoining or abutting property belonging 
 to Mrs. Baker, the sale of which for this local tax was 
 enjoined. Mrs. Baker enjoined the sale of her land. 
 The injunction was made perpetual. Suppose the in- 
 junction had been dissolved and her land had been sold 
 for $2,218 and costs of sale, then she would have lost 
 the land in the street or the $2,000 she received for it, 
 and would have had not a cent left and no land. She 
 lost her adjoining land under the tax-power and this 
 included $2,000 condemnation money for the land taken 
 for the street. 
 
 "A public improvement having been made, it is 
 beyond question a legislative function (and a common 
 council duly authorized as in this case has legislative 
 powers) to determine the area benefited by such im- 
 provements and the legislative determination is con- 
 clusive." [Dissenting opinion in Norwood v. Baker, 
 172 U. S. at "4th" p. 297.] "The legislative act charg-
 
 Chaj). 11] FuRTiiEit Changes. 275 
 
 ing the entire cost of an improvement upon certain de- 
 scribed i)roperty is a legislative determination tlrnt the 
 property described constitutes the area benefited, and 
 also that if is benefited to the extent of such cost." 
 fSame oi>inion, p. 299.] Again, page 300: ''Here the 
 plaintiff does not allege that her property was not ben- 
 efited by the improvement and to the amount of the full 
 cost thereof." Why allege that her property was not 
 benefited when the legislative act concludes her on that 
 subject? If there had been incontestible evidence that 
 Mrs. Baker's land had been benefited to the extent 
 (say) of five thousand dollars, no one can see any rea- 
 son against a tax on her adjoining land of $2,000 for 
 land taken and $218 costs. 
 
 '*It seems indisputable that if no inquin^ into ben- 
 efits was required in the Parsons case (170 U. S. 54), 
 and that act was constitutional, neither can the char- 
 ter and ordinance of Kansas City which also provide 
 a comprehensive system of improvements be held un- 
 constitutional. In neither case is there any inquiry as 
 to benefits nor is the tax levied according to actual ben- 
 efit, but both aliJie rest upon the conclusive presump- 
 tion indulged by Congress in the one case and the char- 
 ter in the other, that such an improvement is a benefit 
 to the abutting property." {Barber Asphalt Paving 
 Co. V. French, 158 Mo. 534, at 551.] 
 
 ''It is true that in many jurisdictions, certainly in 
 this State it is true, that municipal acts, whether in the 
 form of ordinances or resolutions, may be impeached 
 for fraud at the instance of persons injured thereby." 
 [lb., p. 547.] 
 
 If there is a conclusive presumption that the prop- 
 erty-owner has been benefited, how can he prove he has 
 been injured? How can the legislative act be im- 
 peached? A fraud which is a benefit to the party de-
 
 276 Law of Local Taxation. [Chap. 11 
 
 frauded is something rather new in modern law and is 
 peculiar (so far) to tax-bills. 
 
 "But aside from this, the question of whether the 
 plaintiff's lots would or would not be benefited by the 
 construction of tliis sewer, is a legislative and not a ju- 
 dicial question, and the municii)al legislature adjudged 
 that they would be benefited, and fixed the ratio of such 
 benefit when it established the joint sewer district, and 
 as there is no question of fraud or oppression of the 
 municipal assembly in so passing such ordinance (even 
 if such allegation would convert the question into a ju- 
 dicial one, as to which it is not now necessary to decide) 
 su-ch judgment of the assembly is conclusive." [Prior 
 V. Construction Co., 170 Mo. 439, at 451, bottom.] 
 
 This theory of a conclusive presumption of l^ene- 
 fit is contrary to the previous holding of the courts. 
 The courts had held (A. D. 1884) that a defendant in a 
 suit on a tax-bill may ''entirely defeat a recovery by 
 overthrowing the theory of benefits conferred" [City 
 to use V. Ridenour, 84 Mo. 253, loc. cit. 261]. How can 
 this be done if there is a legislative, conclusive pre- 
 sumption of benefits ? Shortly afterwards the court be- 
 low "refused to allow defendant's offer of testimonj^ to 
 show that the lot was not benefited by the improvement, 
 but that its value was entirely destroyed thereby. [Mo- 
 berly v. Hog an, 131 Mo. 19, loc. cit. 22 bottom, and top 
 23.] The inconsistencies involved in constitutional law 
 on this subject are treated further in the next chapter.
 
 CHAPTER 12. 
 
 RESULTS — INCONSISTENCIES. 
 
 Tn the Constitution of Missouri, the clause as to 
 damaging private property for public use was first in- 
 troduced in 1875. Prior to that time the State, or any 
 corporation under its authority, might im]:»rove a pub- 
 lic highway by lowering or elevating the grade or by 
 outs and fills so as to destroy all access to abutting 
 property. Such cases were called "damnum absque 
 injuria/' A notable instance occurs in St. Louis v. 
 Peter Gurno, 12 Mo. 4U, et se(i. (A. D. 1849). The suit 
 was for damages occasioned in 1843 to Mr. Gurno 's 
 property by ''grading and paving" certain streets ad- 
 joining this property. After reciting the e\ddence, the 
 reporter says, p. 416: ''And thereupon the juiy found 
 tlie defendant guilty, and assessed the damages at 
 $1,675." As a matter of fact, Mr. Gurno 's property 
 was damaged to that extent, but the court reversed 
 the judgment, holding that even if the city of St. Louis 
 did injure Mr. Gurno to that amount, still he could re- 
 cover nothing. The city had a right to ruin his prop- 
 erty without being liable for anything. 
 
 Taylor et al. v. St. Louis, 14 Mo. 20, was a suit of 
 like character decided in 1851. The amount of damage 
 is not stated as the court below must have followed St. 
 Louis V. Peter Gurno, supra ; the first lines of the opin- 
 ion so state. Say the court in Taylor v. St. Louis, 14 
 Mo. 20, at 24 : 
 
 "To grade a street or alley already dedicated to 
 public use is not an exercise of the eminent domain, so 
 as to require compensation. [Ts it now?] Tt is not ap- 
 propriating private property to public use, but sim- 
 
 (277)
 
 278 Law of Local Taxation. [Chap. 12 
 
 ply an exercise of power over what is already public 
 property. ' ' 
 
 "To grade a street" is certainly not an exercise 
 of eminent domain; it is certainly not an exercise of 
 the tax power. The language of the court may be sus- 
 ceptible of two meanings. We apprehend the meaning 
 is that "to grade a street or alley already dedicated 
 to public use is not an exercise of the eminent domain 
 and does not require compensation." The writer is not 
 aware of any case where the eminent domain can be ex- 
 ercised without compensation. St. Louis, under an act 
 of the Legislature giving (in form at least) the author- 
 ity, established a building line on one of her boule- 
 vards. The ordinance pro\dded that no building should 
 be erected on any adjoining lot within forty feet of the 
 street line, and that if any one violated the ordinance 
 he should be fined and the building torn down. One 
 of her citizens owning a lot built within fifteen feet of 
 the street; he was arrested and fined in police court, 
 and fined in the criminal court on appeal to that court, 
 but the judgment was reversed in the Supreme Court. 
 [St. Louis V. Hill, 116 Mo. 527.] 
 
 If the council may prevent his building on the 
 front forty feet, they may prevent his building on the 
 back forty feet, or the middle forty feet. They may 
 prevent his building on the whole lot or any part of it. 
 The council may compel him to "cut the weeds" on 
 his lot and enjoin him to "keep off the grass," and fine 
 him $300 per day if he fails to "keep off the grass." 
 The right to build on this forty feet is property. That 
 property under the act of the Legislature and the city 
 ordinance was taken, and yet there was no exercise of 
 the eminent domain. There was no condemnation pro- 
 ceeding. In the Gurno case the court say that the act 
 complained of is merely an exercise of power over what 
 is already public property. But the modern law goes
 
 Chap. 12] Results — Inconsistencies. 279 
 
 further. Air. Gurno's property was dauiaiJfed by pav- 
 ing and grading to the extent of $1,G75. St. Louis paved 
 and graded this street at some cost which she can pay 
 only by a tax, special or general. If Afr. Gurno's lots 
 had been sold to pay for this grading and paving, and 
 his title passed to others, he has certainly lost his prop- 
 erty by the deed to the purchaser and the city got the 
 money which it used, to pay the cost of this grading 
 and paving. In theory, his property has not been taken 
 (only damaged) for pu])lic use. This is a refinement 
 of the law which is a practic<al robbery of the owner. 
 On this modem doctrine of a conclusive presumption 
 of benefit, both as to the fact and amount, I wish to 
 call attention to two cases (referred to heretofore) re- 
 ported in Missouri Reports : Smith v. Kansas City, 128 
 Mo. 23, and McQmddy v. Smith, 67 Mo. App. 205, et 
 seq., the first decided in 1894 and the second in 1896. 
 The facts in brief were these. 
 
 On March 2, 1889, Kansas City by ordinance of 
 that date established the grade of Locust street in Kan- 
 sas City in front of Mrs. Smith's house at about four- 
 teen feet below the natural surface, and on January' 
 3, 1890, the city by ordinance provided for cutting 
 down the street in front of plaintiff's property to the 
 grade so established. The city through its contractor 
 in September and October, 1890, gi-aded the street to 
 the grade so established. Mrs. Smith (in Smith r. Kan- 
 sas City, 128 AIo. 23) claimed that her property was 
 by such grading damaged to the extent of five thousand 
 dollars, for which amount she brought suit against the 
 city. She secured judgment against the city for $2,750 
 and the city brought the case to the Supreme Court on 
 appeal. The plaintiff gave evidence tending to show 
 that her property was damaged. Says the report: 
 ''The defendant introduced e\'idence tending to prove 
 that the effect of the grading was not to depreciate but
 
 280 Law of hocAL. Taxation. [Chap. 12 
 
 to increase the market value of the property" 
 (128 Mo. 28). The jury rendered a verdict for 
 the plaintiff for $2,750 and the Supreme Court affirmed 
 the judgment. 
 
 When the work was completed under contract and 
 ordinance, tax-bills were issued but these tax-bills were 
 held void in McQuiddy v. Vineyard, 60 Mo. App. 610, 
 because the proper officer did not sign them. The tax- 
 bills were reissued and one of them formed tlie basis 
 of the suit in McQuiddy v. Smith, in 67 Mo. App. 205, 
 et seq. The contractor sued on the tax-bills reissued 
 for grading the street, which grading caused the dam- 
 ages of $2,750, decided in Smith v. Kansas City, in 128 
 Mo. 23. In the circuit court, judgment was rendered 
 for the contractor for the amount of the tax-bill, with 
 interest and costs, and this case was taken by appeal 
 to the Kansas City Court of Appeals where the judg- 
 ment was affirmed. The decision is put on the ground 
 that the fact that the grading damaged and did not 
 benefit the lotowner was no defense. The tax-bill 
 amounted to three hundred dollars, as I am informed 
 by counsel. The decision construes article 8 of the 
 Kansas City Charter of 1889. The result of the two 
 cases was that the street in front of Mrs. Smith's lot 
 was graded to her damage in the sum of $2,750, and 
 she had to pay three hundred dollars for having her 
 property damaged to that amount. Compare these two 
 cases (especially McQuiddy v. Smith, 65 Mo. App. 205) 
 with Walther v. Warner, 25 Mo. 277, and Powers v. 
 Hurmert, 51 Mo. 136. They are the antipodes of each 
 other. In the one case the trespasser is answerable 
 to the landowner for the damage done. In the other 
 case the landowner must pay damages to the tres- 
 passer. 
 
 Under the old law the trespasser pays damages; 
 under the new law he receives damages. Under the
 
 Chap. 12] Results — Inconsistencies. 281 
 
 old law the landowner received damages; under the 
 new law, he i)ays damages. 
 
 Say the Supreme Court in 25 Mo. 277, at 283 : 
 ''The facts may be stated in a few words: tlie suit 
 is for alleged trespasses committed by the defendants 
 in constructing the Pacific railroad upon the i^laintiff 's 
 ground before the company had commenced proceed- 
 ing's against the plaintiff to acquire title to it, although 
 afterwards and before the present suit was commenced 
 they did institute such proceedings, and so conducted 
 them that during the progress of this suit a judgment 
 was rendered against the company for the assessed 
 damages, and an order was made vesting the title to the 
 land in the company. In the course of the present suit 
 the defendants amended their answer, alleging the in- 
 stitution of these proceedings to acquire title, and that 
 they were yet pending and being prosecuted by the com- 
 pany with reasonable diligence to a termination. The 
 court refused to strike out this amended answer, ad- 
 mitted these proceedings in evidence on the trial, and 
 directed the jury substantially that if the company had 
 located their road on the plaintiff's land, and the tres- 
 passes complained of were necessarily conmiitted by 
 the company's contractors in the construction of the 
 road, the plaintiff could not recover on account of such 
 acts. It is thus seen that the practical question in the 
 case is, whether the legislative acts, to which we have 
 referred, any or all of them justify the alleged tres- 
 passes, and we are of the opinion that they do not ; and 
 that therefore, the judgment must be reversed and the 
 cause remanded and in this we all concur." Tlie defend- 
 ants, the railroad contractors were held liable for the 
 trespass committed. 
 
 In Pollers v. Hurmert, 51 Mo. 136, the Quincy, 
 Missouri and Pacific Railroad Company constructed a 
 railroad on and over the lands of the plaintiff, Rich-
 
 282 Law of Loc.u^ Taxation. [Chap. 12 
 
 ard L. Powers, in Adair county, Missouri. The defend- 
 ant, the contractor for grading the railroad, in the pros- 
 ecution of his work under his contract, tore down 
 plaintiff's fence on the railroad right of way. The 
 right of way was part of the cultivated land of the 
 plaintiff, Mr. Powers, and was in his possession and 
 use. The railroad company had filed their suit to con- 
 demn this land, the landowner appeared to the suit and 
 commissioners to assess damages had been appointed 
 and these commissioners had assessed Mr. Powers 
 damages at $200. Their report had been filed and no 
 exceptions thereto had been made. Then the contrac- 
 tor tore down the fence. A few days after the con- 
 tractor tore down the fence, the money was paid into 
 court by the railroad company for Mr. Powers, the 
 landowner, and Mr. Powers accepted the two hundred 
 dollars giving his receipt therefor and sued the rail- 
 road contractor in trespass for tearing down his fence. 
 He recovered ten dollars before a justice of the peace 
 and on appeal to the circuit court the landowner again 
 had judgment and the contractor took the case by ap- 
 peal to the Supreme Court, where the judgment was af- 
 firmed. This case was decided at the October term, 
 A. D. 1872, three years before the adoption of the Con- 
 stitution of 1875. In rendering the opinion, the court, 
 at page 137, et seq., say: 
 
 ''The only question presented is, whether the 
 agreed case warrants the judgment. It is contended 
 that the reception of the money allowed by the commis- 
 sioners on the condemnation of the property was a 
 waiver of the alleged trespass. It is agreed that the 
 trespass was committed and the liability incurred be- 
 fore the condemnation was perfected by the paymient 
 of the money. It may be remarked that the taking of 
 private property for public use is in the nature of a 
 forced sale. The owner is compelled to part with his
 
 Chap. 12] EEsuLTfr— Inconsistencies. 283 
 
 property at the ]n-ice assessed. The whole proceeding 
 is m invitum and he is forced to take the assessed price, 
 nolens volens. So, in accepting the price which is 
 forced on him, he agrees to nothing, and waives no ])re- 
 vious right that may have accrued to him, nor does the 
 condenmation rehite back so as to justify a previous 
 trespass. Relation is sometimes allowed to prevent 
 injustice, as when an attachment has been issued and 
 levied without sufficient affidavit, and an amended affi- 
 da\nt is afterwards made it will relate back, so as to 
 uphold the attachment and justify the previous lev}', 
 but in that case the right to the attachment and its levy 
 existed at the time and only lacked the formality of a 
 sufficient affidavit. The right to invade the plainti/f's 
 property Iwd no existence till the condenmation was 
 complete hy payment of the assessed price. [See Wal- 
 ther V. Warner, 25 Mo. 277.] " 
 
 Judge Adams wrote this opinion, concurred in by 
 Judge Wag-ner, and the case was approved in Powers 
 V. Hurmert, 51 Mo. 152: "Private property shall not 
 be taken or applied to public use without just compen- 
 sation," was the old Constitution of Missouri. The 
 new Constitution changed the language materially: 
 "Private property cannot be either taken or damaged 
 for public use without just compensation," and the 
 framers of the Constitution added that until this "just 
 compensation" (either for taking or damaging) shall 
 be paid to the owner, his ]iroprietary nghts shall not 
 be divested and the owner shall not be disturbed. The 
 owner's title cannot be divested without payment in 
 advance; the owner cannot be disturbed without pay- 
 ment in advance. The owner is just as much entitled 
 to **just compensation" in advance for damaging his 
 private property for public use, as he is entitled to 
 "just compensation" in advance for taking his private 
 property for public use.
 
 284 Law of Local Taxation. [Chap. 12 
 
 Now, "payment of the assessed price" for dam- 
 aging is just as necessary as ''payment of the assessed 
 price" for taking. "The right to invade the plaintiff's 
 property had no existence till the money was paid;" 
 the right to disturb the owner had no existence till the 
 money was paid. Both rights are conferred in the same 
 sentence in the Constitution. The constitutional pro- 
 vision is : 
 
 "That private property shall not be taken or dam- 
 aged for public use without just compensation. Such 
 compensation shall be ascertained by a jury or board 
 of commissioners of not less than three freeholders, 
 in such manner as may be prescribed by law; and un- 
 til the same shall be paid to the owner, or into court for 
 the owner, the property shall not be disturbed or the 
 proprietary rights of the owner therein divested? 
 
 Judicial questions may arise under this constitu- 
 tional pro\asion or any other statute. To determine 
 what the law is, is of the very essence of judicial duty. 
 To determine what the law shall be is of the very es- 
 sence of legislative duty. These questions may arise : 
 
 1. Wliat is private property? 
 
 2. Who owns it? 
 
 3. What is taking it? 
 
 4. What is damaging it? 
 
 5. Is a given taking for public use? 
 
 G. Is a given damage for public use? 
 
 7. What is just compensation? 
 
 The Constitution evidently contemplates judicial 
 action in each of the seven cases noted, and, it may be, 
 in others. The writer has not undertaken to name all 
 the cases in which judicial action must be taken. If 
 the Legislature has the power to determine what is 
 "just compensation" and does so determine, then there 
 is nothing left for court or jury or commissioners to 
 do. They have no jurisdiction. If the Legislature has
 
 Chap. 12] Results — Inconsistencies. 285 
 
 the power to determiiie and does deteniiine that cer- 
 tain acts are not a taking of private property for pub- 
 lic use, then there is nothing left for the courts to do. 
 If the Legislature has the power to determine and does 
 detennine that certain acts by certain ordinances and 
 laws do not damage private property, then the court, 
 jury and commissioners have nothing to do. There can 
 not be just comi)ensation for damaging private prop- 
 erty which is not damaged. There cannot be just com- 
 pensation for taking ])rivate property which is not tak- 
 en. Either the Legislature must detennine what is a 
 taking, what is a damaging, and what is just compensa- 
 tion, or it must be done by court and juiy. There can 
 be no middle ground. 
 
 There can be no tax without statute authority. 
 There is no common law for taxation. One theory is that 
 the Legislature determines finally and conclusively the 
 fact and amount of benefit. How can there be just com- 
 pensation for damaging property which is benefited, and 
 if it is benefited how is it damaged! Here we have the 
 legislative determination that Mrs. Smith's land was 
 benefited to the extent of the amount of the tax-bill 
 ($300), and that legislative determination is conclusive. 
 We have the judicial determination that Mrs. Smith's 
 land was damaged to the extent of $2,750, and this ju- 
 dicial determination is conclusive. So Mrs. Smith com- 
 pels Kansas City to pay her $2,750 and costs for hav- 
 ing benefited her property $300. The legislative de- 
 termination of the fact and amoimt of benefit are con- 
 clusive for it rests alike "Upon the conclusive presump- 
 tion indulged hy Congress in one case and the charter 
 in the other, that such an improvement is a benefit to 
 the abutting property" (158 Mo. 551). 
 
 Here the conclusive legislative determination was 
 first made that Mrs. Smith's abutting property would 
 be benefited to the extent of the cost of the work ; then
 
 286 Law of Local Taxation. [Chap. 12 
 
 tlie city did the work and thereby damaged Mrs. 
 Smith's abutting property to the extent of $2,750, for 
 which in a suit against the city she recovered that 
 amount, thereby conclusively proving that Mrs. 
 Smith's property was damaged to that amount, the 
 conclusive legislative determination still remaining in 
 force that this same property was by the same (dam- 
 age) act benefited $300. 
 
 It does seem a monstrous injustice to compel Kan- 
 sas City to pay Mrs. Smith $2,750 for conclusively ben- 
 efiting her property to the extent of $300. And it seems 
 a monstrous injustice to compel Mrs. Smith to pay 
 three hundred dollars for damaging her property 
 $2,750; the damage being absolutely conclusive in fact 
 and amount. 
 
 The regular course is this under the Kansas City 
 Charter of 1889: First, the ordinance to grade is 
 passed. Second, the ordinance is filed in the circuit 
 court with a petition and notice is given Mrs. Smith to 
 appear, and if she claimed damages she must state the 
 amount. (Here Mrs. Smith was not a party and had 
 no notice and was not bound and hence the suit for 
 damages was brought after the damage was done.) 
 The regular course was then to appoint commissioners 
 who would ascertain if there were any damages and 
 how much, and then when these damages are paid (say 
 $2,750, as found by court and jury) then the grading 
 proceeds and when completed Mrs. Smith must pay 
 $300 benefit for doing her property this $2,750 damage. 
 In this law (including in the term ''law" the Constitu- 
 tion and the charter of Kansas City), it is absolutely 
 conclusive that this property was conclusively bene- 
 fited to the extent of three hundred dollars by an act 
 which was a conclusive damage to it of $2,750. Con- 
 clusive damages to personal property may be con- 
 verted into conclusive benefits at no distant day. In
 
 Chap. 12 J Results— Inconsistencies. 287 
 
 this case the net result was that Mrs. Smith's property 
 was damaged $2,750, for doing which damage she had 
 to pay $300. 
 
 The city can do no act except by agent. For do- 
 ing wrongful acts both principal and agent are liable 
 to the party injured for the injury done. This has been 
 the general rule of law in all cases, but here we have 
 an exception. Here the contractor, the agent does the 
 prohibited act and must be paid for it. You cannot 
 damage private property for x)ublic use, but you may 
 hire it done, and the laborer is worthy of his hire; and 
 the damaged property must pay the damaging contrac- 
 tor his full hire for injuring the owner's property. 
 
 It is true that Mrs. Smith recovered $2,750 from 
 the city, one of the wrongdoers, but this was only after 
 a long and expensive litigation and after her property 
 had been disturbed contrary to tlie intent of the Con- 
 stitution, which plainly requires payment in advance 
 of the taking as well as in advance of the damaging. 
 If the State of Missouri had done this act of damaging, 
 then the State cannot be sued as Kansas City was sued 
 in Smith r. Kansas Citif, 128 :\ro. 23. If the land had 
 been taken perhaps ejectment would lie against any per- 
 son in possession, but here damage has been done, dam- 
 age forbidden by the Constitution ; the property cannot 
 be restored undamaged to the owner. The State's agent 
 or contractor can sue the owner of the damaged prop- 
 erty and recover his contract price to the full extent 
 of the value of the land and all improvements on the 
 land, and yet that same tax if levied according to bene- 
 fit would have been unconstitutional if the work was a 
 general benefit to the lot. Just think of it ! That tax- 
 bill would have been unconstitutional if it had been a 
 general benefit. This $2,750 damage was the only thing 
 that saved this $300 tax-bill from being unconstitu- 
 tional.
 
 288 Law of Local Taxation. [Chap. 12 
 
 In Keith r. Bingham, 1()0 Mo, 300, and Smith v. 
 Kansas City, 128 Mo. 23 (both grading cases, i. e., tax- 
 ation for grading), it was not the local tax or special 
 tax-bills that did the damage— it was the grading. The 
 issue of the special tax-bills was not a benefit or dam^ 
 age. If the grading did a damage, the special tax-bill 
 did not increase or diminish it or convert the damage 
 into a benefit. The damage would have been the same 
 if the special tax-bill had never been issued. 
 
 In Smith v. Kansas Citij, 128 Mo. 23, if Kansas 
 City did not Wolate the Constitution, how could Mrs. 
 Smith get a judgment against the city for $2,750. If 
 Kansas City did violate the Constitution, how can she 
 tax for it ! How can she tax the verj^ person and prop- 
 erty intended to be protected? If Kansas City did not 
 violate the law, how could Mrs. Smith get a judgment 
 against the city for $2,750! If Kansas City did violate 
 the law, how can she tax the injured person and the in- 
 jured property to pay for it? If Kansas City did not 
 ^iolate the Constitution or the law, how can there be a 
 judgment against the city for $2,750? If she did vio- 
 late the Constitution or the law or both, how can she 
 tax the injured owner or injured property for it? It 
 was the ver^- object of the Constitution to protect Mrs. 
 Smith and her property. Our cities can take private 
 property for public use without just compensation, else 
 why the prohibition? Wliy prohibit damaging private 
 property for public use if it cannot be damaged? Wby 
 prohibit an act that cannot be done? If the thing can- 
 not be done, why prohibit it? Why make the prohibi- 
 tion? The English Parliament cannot do an act phys- 
 ically impossible; our cities can. Here we have $2,750 
 as the damage of a benefit, and $300 as the benefit of a 
 damage. The English Parliament cannot make a $2,750 
 damage to a person or his property a $300 benefit to 
 that person or his property; our North American cit-
 
 Cliap. 12] Results— Inconsistencies. 289 
 
 ies, towns and villages pan. This is worse than a 
 South American revolution. 
 
 This doctrine is the quintessence of malicious an- 
 archy in its most hideous fonn. Tt betokens a return 
 to savageiy and l>arl)arity. The most absolute and 
 despotic government on earth never has done and never 
 can do worse. The arch fiends and devils of hell, with 
 all their legendaiy tendencies to evil, cannot equal 
 much less excel it! 
 
 "Property which is wliolly and exclusively within 
 the jurisdiction of another State received none of the 
 protec(tion for which the tax is supposed to be the com- 
 pensation." [T'nion Transit Company v. Kentucky, 
 199 U. S. 194, 1. c. 204 (Temp. Nov., 1905).] But if the 
 State, the city, town or village (the protector) had 
 damaged the propert}^ to be protected, then this traitor, 
 Judas-like, has the power to tax. This cor^wration, the 
 creature of Kentucky statute law, has grown beyond 
 its creator. Say the court in effect : 
 
 These Kentucky cars were used in Illinois and 
 taxable in Illinois only. If these Kentucky' c^irs re- 
 ceived protection from Illinois law; if they received a 
 benefit from Illinois law, the cars ought to pay for the 
 value received. But should that prohibit Kentucky 
 from taxing these cars also if Kentucln^ benefited the 
 cars or their owner? 
 
 Is it no benefit to this Kentuckj^ c.oriK)ration for 
 the State of Kentucky to confer on it the power to hold 
 and use these cars? Illinois ought yet to pass a law 
 to tax Dr. Emerson for two years for holding, owning 
 and using his slaves, Dred Scott and his wife and two 
 children, at Rock Island, Illinois. Dr. Emerson 
 surgeon, in United States Army was protected in 
 his property in these slaves and he ought to pay a tax 
 in Illinois for it. Would such taxation in Illinois ex- 
 
 19
 
 290 Law of Local, Taxation. [Chap. 12 
 
 elude Missouri from taxing these slaves 1 Slaves were 
 no more movable than railroad cars, perhaps not as 
 much [Dred Scott v. Sanford, 19 Howard 393, et seq.] 
 The State of Missouri through the Kansas City Char- 
 ter and her council damaged Mrs. Smith $2,750 and 
 the tax was valid. Kentucky refrained from damage— 
 conferred a benefit— and her tax was invalid. Such is 
 the irony of fate.
 
 CHAPTER 13. 
 
 EXISTING STATE OF CONSTITUTIONAL LAW^ AND REMEDIES 
 
 PROPOSED. 
 
 We liave seen that the Missouri Constitution it- 
 self })laces limitations on the amount of state taxes, 
 county taxes, city, town and village taxes that may be 
 levied under legislative authority. No limitations 
 would exist but for these constitutional prohibitions 
 or restrictions. Every Legislature of every State in 
 the Union has had and has the power to limit the 
 amount of taxes to be levied by counties, cities, towns 
 and villages, including special taxing districts to be 
 formed at the pleasure of the Legislature (with such 
 powers and with such limitations as the Legislature 
 may provide). 
 
 Under article 8, section 9 of the Constitution of 
 New York, the New Lork Legislature may authorize a 
 count}^ tax of one hundred per cent. The Legislature 
 irijay authorize an assessment of one hundred per cent. 
 The Legislature shall pass laws to restrict these var- 
 ious taxes and assessments and debts. The Constitu- 
 tion of New York does not restrict cities in making 
 debts or levying taxes or in making local assessments. 
 In New York a city tax may be fifty per cent of all 
 taxable property, so far as the New York Constitution 
 is concerned. The Legislature shall limit city debts, 
 taxes and assessments. Suppose the Legislature does 
 not act— does not limit — then the power is without lim- 
 it. There is no power in the State to compel the Legis- 
 lature to act and fix limits. The courts cannot man- 
 damus the Legislature to act : one co-ordinate branch 
 
 (291)
 
 292 Law of Local Taxation. [Chap. 13 
 
 of the g-overnnient cannot compel another equal co-or- 
 dinate branch of the government to act; the judicial 
 department cannot sustain a writ of error against the 
 legislative department. A\Tien the New York Legisla- 
 ture authorizes an assessment (local) of one hundred 
 per cent to pay for a local improvement, and the city 
 makes it, then the New York Legislature did just what 
 the Constitution gave them authority to do, and the 
 city did just what the Legislature intended them to do. 
 In creating debts, in le\^dng assessments, and in levy- 
 ing taxes, the cities of New York and the Legislature 
 of New York are not governed by the Constitution of 
 New York, according to the plain terms and meaning 
 of that instrument. 
 
 In Missouri, cities may be authorized to \evj one 
 per cent only ; in New York it may be one hundred per 
 cent. The New York Legislature may authorize a debt 
 of one hundred per cent of the whole property ; here in 
 Missouri it can never exceed five per cent. In New York 
 the tax, the assessment, can take it all ; in Missouri only 
 five per cent. But in Missouri it is only in these latter 
 days that the cities, towns and villages were judicially 
 authorized to damage property fifty per cent and then 
 tax the damaged property fifty per cent to pay the dam- 
 ages. 
 
 The New York Constitution requires her Legisla- 
 ture to restrict the power of assessment, taxation and 
 creating debts "So as to prevent abuses in assessments 
 and contracting debts by such municipal corporations." 
 The Missouri Constitution fixes the limit; the New 
 York Constitution does not. The Missouri Legislature 
 cannot go beyond the constitutional limit in her Con- 
 stitution ; in New York there is no constitutional limit 
 at all, either on the Legislature or the cities;. on the 
 contrary, the command in the New York Constitution 
 to the New York Legislature is, to fix the limit ; other-
 
 Chap. 13] State of Constitutional Law. 293 
 
 wise none exists. There is no way to compel the Legisla- 
 ture to make any limit or to pass any law. 
 
 The New York Legislature iimst restrict certain 
 powers so as to prevent abuses, etc. This means that 
 there may be abuses, as for instance, when the tax is 
 for more than the value of the property for a work 
 which was an injury to the taxed property. The Con- 
 stitution does not restrict so as to prevent abuses. The 
 danger of abuse is admitted. The fact of abuse is ad- 
 mitted. New York may abuse a granted power. The 
 Missouri Constitution prohibits this power which the 
 New York Constitution directs her Legislature to so 
 restrict as to prevent abuse. A prohibited power can- 
 not be abused ; a granted power may be abused. 
 
 The decisions of the courts of those states whose 
 constitutions do not contain provision like that of New 
 York, give no reasons for so holding except that the 
 courts have always so held. Each decision of each 
 court is a mere "brutum fulmen." 
 
 In Inhabitants of Palmyra v. Morton (A. D. 1857), 
 25 Mo. 593, at 595, the Supreme Court of Missouri say : 
 
 "Though the public convenience was promoted by 
 making the pavement on the street designated in tlie 
 ordinance, yet it was essentially a local improvement 
 and it was proper that the owner or occupant of the 
 property fronting on it should hear the burden of its 
 cost," referring to Locknood v. St. Louis, 24 Mo. 20 
 (A. D. 1854). The action of debt was given against the 
 owner or occupier. There was no lien on the land, to 
 be enforced. Continuing the court say: 
 
 ''Examples of local assessments for partial im- 
 provements are familiar in the legislation of states and 
 municipal corporations. The subject has been thor- 
 oughly discussed and every principle bearing on it se- 
 verely analyzed in almost every state of the Umon 
 u^iere the pouer has been exercised; and it is now as
 
 294 Law of Local Taxation. [Chap. 13 
 
 firmly esfablislied as any other doctrine of America/n 
 law." [25 Mo. supra.] This law was enacted in 1845 
 (Laws of Missouri 1845, p. 151) twenty-four years af- 
 ter the admission of the State. The ordinance was 
 enacted and the work done in 1853. This statute made 
 the owner personally liable — now repudiated. This 
 statute made the mere occupant personally liable; the 
 mere occupant was personally liable. 
 
 Each county builds its own jail and court-house 
 [Just tliink of being close to a jail ; what a transcend- 
 ental advantage that is to a man and his wife, raising 
 the family of boys and girls], erects bridges and opens 
 roads, and the expenses for such purposes are defrayed 
 by a county tax. Public roads are worked and kept in 
 repair by the inhabitants of particular districts; 
 marshes are drained and river banks are leveed and 
 the expenses of these improvements are charged upon 
 the persons in the vicinity, although the public is ben- 
 efited by them. So in towns, wells and cisterns are dug 
 and kept in repair at the expense of particular limits ; 
 and in cities, public parks and wharves are established, 
 streets are opened and paved, sewers are made, water 
 pipes are laid and the expenses thereof are charged to 
 the property-holders immediately benefited thereby. It 
 is the exercise of the same power that authorizes dis- 
 tricts, counties or towns to subscribe for public im- 
 provements. [27 Miss. 224 ; 5 Gilm. 405 ; 1 McCook 77 ; 
 9 Ben Monroe 526; 9 Humph. 252; 4 Coms. 423.] " 
 
 Here is a clear analog}^ between tax-bills and mu- 
 nicipal bonds. Here it is said that this sidewalk was 
 "essentially a local improvement and it was proper 
 that the owner or occupant of the property fronting on 
 it should bear the burden of its cost." 
 
 The liability is on the occupant. "We must intend 
 that the court meant to include a lawful occupant in 
 possession as tenant. On this subject the Supreme
 
 Chap. 13] State of Constitutional Law. 295 
 
 Court of Missouri, at October term, 1903, in the case of 
 Ford V. Kansas City, 181 Mo. 137, at page 148-9, say : 
 
 ''It may be conceded that tlie municipal corpora- 
 tion may impose upon municipal lotowners the burden 
 of the duty of keeping the walks in front of their prem- 
 ises in reasonably safe repair, and enforce the same by 
 special tax-bills, or penalties for failing to perform 
 such duty; but we are unwilling to extend tliis power 
 to a mere occupant of property to keep in repair the 
 walks in front of the property occupied by him. This 
 duty could only be enforced against a tenant by a judg- 
 ment in the nature of a fine for failing to perfonn his 
 duty; no tax-bill could be issued against him because 
 he is not the owner of the property. The city has ab- 
 solute control of its streets and sidewalks [and, it seems 
 to this writer, practically over the abutting lots] and 
 under the law it must keep them in a reasonably safe 
 condition, and this duty cannot be evaded, suspended 
 or shifted upon others by any act of its own. [Welsh 
 V. St. Louis, 73 Mo. 71; Russell v. Town of Columbia, 
 74 Mo. 480.] 
 
 "The keeping of sidewalks in safe repair, in a 
 large and populous city means in many instances, the 
 doing of a large amount of substantial work, and if 
 cities can impose this burden and duty upon mere ren- 
 ters of property, we confess those li\'ing in such cities, 
 who are so unfortunate as not to be able to own the 
 property occupied by them, are at the mercy of charter 
 frame rs. 
 
 "It is unnecessary to express an opinion as to that 
 part of the ordinance relating to the removal of snow 
 and ic« from the walks by the occupant, for that fea- 
 ture of the ordinance is not involved in this cause ; but 
 upon the question of imposing the duty of keeping the 
 sidewalks in safe repair by the mere occupant, who is 
 not the owner, we unhesitatingly say that the charter
 
 296 Law of Local Taxation. [Chap. 13 
 
 provision and the ordinance predicated upon it, ivMch 
 authorizes the exercise of such poiver, is unconstitu- 
 tional and void. We have searched in vain for author- 
 ity which sanctions the exercise of any such power. We 
 readily comprehend the reason for imposing the duty 
 of street improvements and repair upon the property- 
 owners, for such burdens of taxation are repaid in the 
 enhancement of the value of the property, but no such 
 reason can be assigned as to the tenants occupying the 
 property. ' ' 
 
 Ford, the tenant, rented this property from J. B. 
 Morrison. That leasehold was an interest in land. He 
 was in possession and had the right to the possession 
 and use of the property at the time the injury on the 
 adjoining sidewalk occurred. This tenant had the ex- 
 clusive right to the possession and use of the land and 
 this right of way, the adjoining sidewalk. The owner 
 of the remainder in fee could not, against the tenant's 
 will, enter this property by this sidewalk without being 
 liable as a trespasser. The property was as miuch his 
 as though he had a deed to it in fee simple. The de- 
 cision assumes that repairing this sidewalk was no ben- 
 efit to the tenant who occupied the property and used 
 the sidewalk. Of what value would this lease be; of 
 what value would the fee simple be if the owner or ten- 
 ant could not get to his property leased or owned in 
 fee? If this sidewalk had been repaired, Mr. Ford 
 would have suffered no injury. Is it possible that this 
 was no benefit to Mr. Ford? Is it no benefit to Mr. 
 Ford to have a right of way to and from his home free 
 from danger to life and limb? Repairing this sidewalk 
 according to this decision was no benefit to Mr. Ford, 
 while a $2,750 damage to Mrs. Smith's house and lot 
 (128 Mo. 23) was a three-hundred-dollar benefit to her. 
 If the city cannot impose this duty on the tenant who 
 is actually benefited (would have been in this case)
 
 Chap. 13] State of Constitutional Law. 297 
 
 ought a like duty to be imposed on a fee simple owner 
 who ife damaged? 
 
 The duty imposed on the party benefited is uncon- 
 stitutional; the duty imposed on the ])ai'ty damaged is 
 constitutional. 
 
 Suppose ^Ir. Ford had owned in fee this house and 
 lot, would the city have been liable? If a sidewalk can 
 be a sjjecial, peculiar, exceptive benefit to anyone, that 
 person so benefited specially, peculiarly, exceptively is 
 the one above all others on whom the burden should \ye 
 cast. He who receives the benefit ought to bear the bur- 
 den. Here was a loose plank in this sidewalk. It 
 tri])ped Mr. Ford when his son stepped first on the 
 loose plank. Repairing this loose i^lank would have 
 saved Mr. Ford all this pain, anguish and misery. Less 
 than two minutes would have nailed this plank so as to 
 prevent this injury. Mr. Ford used the sidewalk daily. 
 Why did he fail to discover the defect in this plank 
 walk, which walk was a special, peculiar, exceptive ben- 
 efit to him as occupant of the property, and the only 
 person who had a special interest and benefit in it. It 
 is said that the keeping of sidewalks in safe repair in- 
 volves doing a large amount of substantial work. Nail- 
 ing this plank down was a very small affair to the one 
 who used it daily with full opi)ortunity to know that the 
 plank was loose and the walk was dangerous. The city 
 must have better eyes for defects in sidewalks than the 
 person who has a special property interest in it and 
 who uses that in'0]>erty interest daily. 
 
 Owners in fee simple, however, are now at the mer- 
 cy of charter framers. Their property may be made 
 liable by special tax to the extent of one hundred per 
 cent of the value of the land and one hundred per cent 
 of all buildings tbereon, to pay for a street improve- 
 ment worth nothing to the landowner and even a dam- 
 age to him. Gentle reader, don't you think we need a
 
 298 Law of Local Taxation. [Chap. 13 
 
 change of constitutional law? This tenant leased this 
 house and lot under a lease at will, or from month to 
 month, or for years. A tenant for a term is bound to 
 pay rent during his tenn, notwithstanding the destruc- 
 tion of the premises by wear or by fire or othei-wise. 
 His term in the house and lot burns up and he must 
 pay the price for it just as though the price was for a 
 fee simiDle in place of an estate at will or for years. 
 
 "The constitutional power to authorize the rendi- 
 tion of a personal judgment in such case was not con- 
 sidered or argued (in St. Louis to use of McGrath v. 
 Clemens, 36 Mo. 467), and the same may be said as to 
 the cases of the City of St. Louis to use of Lohrum v. 
 Coons, 37 Mo. 44, and Fowler v. City of St. Joseph, 37 
 Mo. 228, and The Inlmbitants of Palmyra v. Morton, 
 25 Mo. 593." 
 
 "In none of these cases, nor in any other case in 
 this State to which we have been referred, was the con- 
 stitutional i^ower of the Legislature to authorize mu- 
 nicipal corporations to make these local improvements 
 and assess the cost against the adjoining property, and 
 then recover a personal judgment against the owner of 
 the property for the amount assessed, ever brought di- 
 rectly in question or discussed." [City of St. Louis to 
 use V. Allen, 53 Mo. loc. cit. 51.] 
 
 "These special assessments are found in the En- 
 glish law, and have prevailed, it is believed, in most, 
 if not all, of our American states, and their validity, 
 when assessed as in this instance, cannot be questioned 
 under our constitution." [Lockivood v. St. Louis, 24 
 Mo. loc. cit. 22.] 
 
 Continuing the court says : ' ' Their intrinsic jus- 
 tice strikes every one." 
 
 T\Tien Mrs. Smith had to pay $300 (67 Mo. App. 
 205) for damaging her property to the extent of $2,750 
 (128 Mo. 23), in such cases, it ought not to be said of
 
 Chap. 13] State of Constitutional Law. 299 
 
 such special taxes that "their intrinsic justice strikes 
 every one." There is no intrinsic justice in a local tax 
 of $300 on local property for doing that local property 
 a local damage of $2,750, al>ove all l>enefits conferred on 
 it by the acts of the public. "Justice" is completely 
 paralyzed. 
 
 In Lockivood v. St. Louis, 20 Mo. loc. cit. 23, the 
 court, in speaking of exemptions from taxes and in dis- 
 tinguishing local from general taxes, say : 
 
 "The court held that this [exemption] referred, to 
 general taxes to be assessed for the benefit of the town, 
 coimty or State at large; that to pay for the opening 
 of a street, in i)roportion to the benefit derived from 
 it, was no burden, and therefore no tax within the 
 meaning of the law; and finally that the maxim, that 
 he who feels the benefit ought to feel the burden also, 
 was consistent with the interests and dictates of science 
 and religion." 
 
 This sewer in St. Louis, the street grading in Kan- 
 sas City (128 Mo. 23, and 67 Mo. App. 205), on Locust 
 street and on May street (100 Mo. 300) were works 
 which the cities could have been and were authorized 
 to do and make payment therefor by the levy of gen- 
 eral city taxes on all real and personal property in the 
 cities doing the work and leyvnng the tax. The sewer 
 tax and the grading tax would then have been burdens 
 on all St. Louis and Kansas City. 
 
 That burden, according to the later rules of consti- 
 tutional law, ceases when the whole tax is placed on 
 specified property, all other property being exempt 
 from the tax, although sixty thousand times as much. 
 Take Mrs. Smith's lot (128 Mo. 23) : the tax was three 
 hundred dollars. Counting the assessed value of all the 
 property in Kansas City at $45,000,000, :Mrs. Smith's 
 part of this $300, special tax is one two-hundredth part 
 of one cent, and this enormous tax of one two-hun-
 
 300 La\\ of Local Taxation. [Chap. 13 
 
 dredtli part of one cent is a burden too grievous to be 
 borne, but this three hundred dollar special tax is not 
 a burden even when the work to pay for which it was 
 levied was a $2,750 damage. Is this the meaning of 
 the framers of the Constitution? Multiply this bur- 
 densome tax of one two-hundredth part of one cent by 
 sixty thousand; it will then cease to be a burden even 
 if levied to pay for doing the work occasioning a dam- 
 age to the property fifty-five million times the amount 
 of the general tax. In this stormy ocean, one ton 
 weight is a burden sufficient to carry the taxpayer be- 
 neath the waves if tied around his neck ; but put around 
 him fifty-five million tons and he will swim with the 
 greatest of ease. 
 
 When the courts so interpret the Constitution and 
 the intention of the framers of the Constitution of Mis- 
 souri of 1820, 1865 and 1875, we believe they commit a 
 serious error. Such inteiTDretation renders the titles to 
 real estate insecure. 
 
 Williams v. Cammack, 27 Miss. 209, at 224, re- 
 ferred to in 25 Mo. 593, 1. c. 595, bases the power on the 
 theory that works of a public nature may be accom- 
 plished and a local tax be levied to pay for them even 
 if the acts done are an injury to the property taxed. 
 
 ''They [these acts] must be submitted to as the 
 necessaiy action of the machinery of government and 
 as individual sacrifices to the general good, in order 
 that the advantages of the social compact may be en- 
 joyed. This principle rests in the very foundations of 
 society and is illustrated in every day's experience of 
 the citizen, yielding his natural rights, even of life, lib- 
 erty or property, to the public good. But he can only 
 claim immunity when it is secured to him by the prin- 
 ciples of the Constitution." 
 
 This decision was rendered in 1854. There is here 
 nothing different from our own decisions in Missouri
 
 Chap. 13] State of Constitutional Law. 301 
 
 (and elsewhere) in 67. Louis c. Peter Gurno, 12 Mo. 
 414, and Taylor v. St. Louis, 14 Mo. 20. 
 
 The state government cannot now, in the exercise 
 of any of its i)0wers, damage private property for pub- 
 lic use. There is now the same obligation to make 
 *'just compensation" for damaging as for taking. It 
 is said, and with truth, that these taxes are found in 
 the English law: "Those S])ecial assessments are found 
 in the English Law" (20 Mo. 22). It is true that these 
 taxes exist and always have existed in England. Tn 
 England, taxes are levied under an act of Parliament 
 and this act of Parliament is always, in all cases, ab- 
 solutely supreme. Parliament had the right to tax the 
 American and all other colonies in all cases whatsoever. 
 No such thing is known in English history as an act 
 of Parliament being void on account of its conflict with 
 the English Constitution. Acts of Congress and of 
 the various state legislatures in the United States are 
 different. We acquired Louisiana when the United 
 States Constitution was only fourteen years old. That 
 Constitution was only twenty-three years old when 
 Missouri Territoiy was formed, and only thirty-two 
 when Missouri was admitted as a State. 
 
 One Parliament cannot enact any law which a sub- 
 sequent Parliament may not repeal. Congress cannot 
 pass an irrepealable law. One state legislature cannot 
 enact a law which a subsequent legislature may not re- 
 peal. Parliament consists of king, lords (temporal and 
 spiritual) and commons. We have in the United States 
 the President, the Senate, and House of Representa- 
 tives. In each State we have the Governor, the Senate 
 and House of Representatives. The English House of 
 Lords has judicial powers. The Senate of the United 
 States has not. No state Senate has any judicial pow- 
 ers except in a very limited way as in the New York 
 senate.
 
 302 Law of Local Taxation. [Chap. 13 
 
 Our Congress cannot change the Constitution of 
 the United States. No state Legislature can change the 
 state Constitution. Parliainicnt can change the English 
 Constitution. Acts of Parliament are omnipotent. 
 Acts of our state Legislatures and of Congress are not 
 omnipotent. The powers of government are here lim- 
 ited by our constitutions. 
 
 The legal force of a written constitution is well 
 reasoned by Chief Justice John Marshall in Marbury 
 V. Madison, 1 Cranch 68 to 72. This decision was ren- 
 dered at the February term, 1803, of the Supreme 
 Court of the United States, while the United States 
 Constitution was only fourteen years old, and in the 
 same year we purchased Louisiana. Say the court, 
 page 68, bottom: 
 
 ''The question whether an act repugnant to the 
 Constitution can become the law of the land, is a ques- 
 tion deeply interesting to the LTnited States ; but, hap- 
 pily, not of an intricacy proportioned to its interest. 
 It seems only necessary to recognize certain principles 
 supposed to have been long and well established, to de- 
 cide it. That the people have an original right to es- 
 tablish, for their future government, such principles as, 
 in their opinion, shall most conduce to their own happi- 
 ness, is the basis on which the whole American fabric 
 has been erected. The exercise of this original right 
 is a very great exertion; nor can it nor ought it to be 
 frequently repeated. The principles, therefore, so es- 
 tablished are deemed fundamental. And as the author- 
 ity, from which they proceed, is supreme, and can sel- 
 dom act, they are designed to be permanent. This or- 
 iginal and supreme will organizes the government, and 
 assigns to different departments their respective pow- 
 ers. It may either stop here ; or establish certain lim- 
 its not to be transcended by those departments. 
 
 ''The government of the United States is of the
 
 Chajj. 13] State of Constitutional, Law. 303 
 
 latter description. The powers of the Legislature are 
 defined and limited; and that those limits may not l)e 
 mistaken or forgotten, the Constitution is written. To 
 what purpose are powers limited, and to what purpose 
 is that limitation committed to writing; if these limits 
 nUay, at any time, be passed by those intended to be re- 
 strained? The distinction between a government with 
 limited and unlimited powers is abolished, if those lim- 
 its do not confine the persons on whom they are im- 
 posed, and if acts prohibited and acts allowed are of 
 equal obligation. It is a proposition too plain to be 
 contested, that the Constitution controls any legislative 
 act repugnant to it; or, that the Legislature may alter 
 the Constitution by an ordinary act. Between these al- 
 ternatives, there is no middle ground. The constitution 
 is either a superior, paramount law, unchangeable by 
 ordinary means, or it is on a level with ordinaiy legis- 
 lative acts, and like other acts, is alterable when the 
 Legislature shall please to alter it. 
 
 * ' If the former part of the alternative be time, then 
 a legislative act contrar^^ to the Constitution is not law ; 
 if the latter part be true, then wi-itten constitutions are 
 absurd attempts, on the part of the people, to limit a 
 power in its own nature illimitable. Certainly all those 
 who have framed written constitutions contemplate 
 them as fonning the fundamental and paramount law 
 of the nation, and consequently the theory of every 
 such government must be, that an act of the Legisla- 
 ture, repugnant to the Constitution, is void. This the- 
 ory is essentially attached to a written constitution, and 
 is consequently to be considered by this court as one of 
 the fundamental principles of our society. It is not, 
 therefore, to be lost sight of in the further considera- 
 tion of this subject. 
 
 ''If an act of the Legislature, repugnant to the con- 
 stitution, is void, does it notwithstanding its invalidity
 
 3()4 Law of Local Taxation. [Chap. 13 
 
 bind the courts and oblige them to give it effect? Or, 
 in other words, though it be not law, does it constitute 
 a iiile as operative as if it was law? This would be to 
 overthrow in fact what was established in theoiy; and 
 would seem at first view an absurdity too gross to be 
 insisted on. It shall, however, receive a more attentive 
 consideration. 
 
 *'It is emphatically the province and duty of the 
 judicial department to say what the law is. Those who 
 apply the rule to particular cases, must of necessity ex- 
 pound and interpret that rule. If two laws conflict with 
 each other, the courts must decide on the operation 
 of each. So, if a law be in opposition to the Constitu- 
 tion ; if both the law and Constitution apply to a partic- 
 ular case, so that the courts must either decide that 
 case conformably to the law, disregarding the Consti- 
 tution; or conformably to the Constitution disregard- 
 ing the law, the court must determine which of these 
 conflicting rules governs the case. 
 
 ''This is of the very essence of judicial duty. If, 
 then, the courts are to regard the Constitution; and the 
 Constitution is superior to any ordinary act of the Leg- 
 islature; the Constitution, and not such ordinary act, 
 must govern the case to which they both apply. 
 
 "Those, then, who controvert the principle that 
 the Constitution is to be considered, in court, as a par- 
 amount law, are reduced to the necessity of maintain- 
 ing that courts must close their eyes on the Constitu- 
 tion, and see only the law. This doctrine would sub- 
 vert the very foundation of all written constitutions. 
 It would declare that an act which, according to the 
 principles and theory of our government, is entirely 
 void, is yet, in practice, completely obligatory. It would 
 declare that if the Legislature shall do what is ex- 
 pressly forbidden, such act, notwithstanding the ex- 
 press prohibition, is in reality effectual. It would be
 
 Chap. 13] State of Constitutional Law. 305 
 
 giving to the Legislature a practical and real omnipo- 
 tence with the same breath which professes to restrict 
 their powers within narrow limits. It is prescribing 
 limits, and declaring that those limits may be passed at 
 pleasure. That it thus reduces to nothing what we have 
 deemed the greatest improvement on political institu- 
 tions — a written constitution— would of itself be suffi- 
 cient, in America where written constitutions have been 
 viewed with so much reverence, for rejecting the con- 
 struction. 
 
 ''But the peculiar expressions of the Constitution 
 of the United States furnish additional arguments in 
 favor of its rejection. The judicial power of the United 
 States is extended to all cases arising under the Consti- 
 tution. Could it be the intention of those who gave this 
 power, to say that, in using it, the Constitution should 
 not be looked into ! That a case arising under the Con- 
 stitution should be decided mthout examining the in- 
 strument under which it arises? This is too extrava- 
 gant to be maintained. 
 
 ''In some cases, then, the Constitution must be 
 looked into by the judges. And if they can open it at 
 all, what part of it are they forbidden to read, or to 
 obey? 
 
 "There are many other parts of the Constitution 
 which serve to illustrate this subject. It is declared 
 that 'No tax or duty shall be laid on articles exported 
 from any state. ' Suppose a duty on the export of cot- 
 ton, of tobacco, or flour; and a suit instituted to re- 
 cover it. Ought judgment to l)e rendered in such case? 
 Ought the judges to close their eyes on the Constitu- 
 tion and only see the law? The Constitution declares 
 that 'No bill of attainder or ex post facto law shall be 
 passed.' If, however, such a bill should be passed and 
 a person should be prosecuted under it, must the courts 
 condemn to death those victims whom the Constitution 
 
 20
 
 306 Law of Local. Taxation. [Chap. 13 
 
 endeavors to preserve! 'No person,' says the Consti- 
 tution, 'shall be convicted of treason unless on the tes- 
 timony of two witnesses to the same overt act, or on 
 confession in open court.' Here the language of the 
 Constitution is addressed especially to the courts. It 
 jDrescribes directly for them, a rule of evidence not to be 
 departed from. If the Legislature should change that 
 rule, and declare one witness, or a confession out of 
 court, sufficient for conviction, must the constitutional 
 principle yield to the legislative act? 
 
 ''From these and many other selections which 
 might be made, it is apparent, that the framers of the 
 Constitution contemplated that instrmiient as a rule 
 for the government of courts, as well as of the Legis- 
 lature. Why, otherwise, does it direct the judges to take 
 an oath to support it? This oath certainly applies, in 
 an esj^ecial manner, to their conduct in their official 
 character. How immoral to impose it on them, if they 
 were to be used as the instruments, and the knowing 
 instruments, for violating what they swear to support. 
 The oath of office, too, imposed by the Legislature, is 
 completely demonstrative of the legislative opinion on 
 this subject. It is in these words: 'I do solemnly 
 swear that I will administer justice without respect to 
 persons, and do equal right to the poor and to the rich ; 
 and that I will faithfully and impartially discharge 
 all the duties incumbent on me according to the 
 best of my abilities and understanding, agreeably to 
 the Constitution and laws of the United States.' Wliy 
 does a judge swear to discharge his duties agreeably to 
 the Constitution of the United States, if that Constitu- 
 tion forms no rule for his government? If it is closed 
 upon him and cannot be inspected by him? If such be 
 the real state of things, this is worse than solenon mock- 
 ery. To prescribe, or to take this oath, becomes equally 
 a crime.
 
 Chap. 13] State of Constitutional Law. 307 
 
 *'It is also not entirely unworthy of observation, 
 that in declaring what shall be the supreme law of the 
 land, the Constitution itself is first mentioned; and not 
 the laws of the United States generally, but those only 
 which shall be made in pursuance of the Constitution, 
 have that rank. 
 
 "Thus, the particular phraseology of the Constitu- 
 tion of the United States confirms and strengthens the 
 ]nnncii)le, supposed to be essential to all written consti- 
 tutions, that a law repugnant to the Constitution is 
 void, and that courts as well as other departments, are 
 bound by that instrument." 
 
 There are many kinds of taxation enacted and en- 
 forced under the English Constitution which cannot be 
 enforced in the United States : ' ' No capitation or oth- 
 er direct tax shall be laid unless in proportion to the 
 census or enumeration hereinbefore directed to be 
 taken." [Constitution of the United States, article 1, 
 sec. 9.] Parliament always has levied such taxes. ''No 
 tax or duty shall be laid on articles exported from any 
 State." [U. S. Const., art. 1, sec. 9.] Parliament al- 
 ways has levied such taxes. [See '' Customs, ' ' in Black- 
 stone 's Commentaries (3 Ed.), by Cooley, vol. 1, book 
 I, chap. 8, page (top) 312, (bottom paging) 195.] 
 
 These customs were not by common law for "Sir 
 Edward Coke hath clearly shown that the king's first 
 claim to them was by grant of Parliament (3 Edw. I), 
 though the record thereof is not now extant." [lb.] 
 
 Congress cannot enact an income tax law. Parlia- 
 ment can and has done so. Parliament may even 
 change the succession. There is no such thing as an 
 act of Parliament being against the English Constitu- 
 tion. 
 
 "The perpetual taxes are (Blackstone, vol. I, book 
 I, chap. 8, page 312) : the customs, or the duties, toll, 
 tribute, or tariff, payable upon merchandise exported
 
 308 Law of Local Taxation. [Chap. 13 
 
 and imported. The considerations upon which this 
 revenue (or the more ancient part of it, which arose 
 only from exports) was vested in the king, were said 
 to be two (Dyer 165) : first, because he gave the sub- 
 ject leave to depart the kingdom, and to carry his goods 
 along with him ; second, because the king was bound of 
 conunon right to maintain and keep up the ports and 
 havens, and to protect merchants from pirates.'* In 
 the United States we maintain and keep up ports and 
 havens and protect our merchants from pirates, and 
 yet we can not tax exports. 
 
 Sir William Blackstone (in his Commentaries, 
 book I, vol. I, p. 159 top, 102 bottom, 3rd Ed. by Cooley) 
 says: 
 
 "The power and jurisdiction of Parliament, says 
 Sir Edward Coke (4 Inst. 36), is so transcendent and 
 absolute, that it cannot be confined, either for causes or 
 persons, within any bounds. And of this high court, he 
 adds, it may be truly said ' Si antiquitatem spectes, est 
 vetustissima ; si dignitatem, est honoratissima ; si ju- 
 risdictionem, est capacissima. ' It hath sovereign and 
 uncontrollable authority in the making, confirming, en- 
 larging, restraining, abrogating, repealing, reviving 
 and expounding of laivs, concerning matters of all pos- 
 sible denominations, ecclesiastical or temporal, civil, 
 military, maritime, or criminal : this being the place 
 where that absolute despotic power which must in all 
 governments reside somewhere, is intrusted by the Con- 
 stitution of these kingdoms. All mischiefs and griev- 
 ances, operations and remedies that transcend the or- 
 dinary course of the laivs are within the reach of this 
 extraordinary tribunal. It can regulate or new model 
 the succession to the crown; as was done in the reign 
 of Henry VIII. and William III. It can alter the es- 
 tablished religions of the land ; as was done in a variety 
 of instances in the reigns of King Henry VTII. and his
 
 Chap. 13J State of Constitutional Law. 3()9 
 
 three children. It cmi cliange and create afresh even 
 the constitution ol' the kingdom and of Parliaments 
 themselves ; as was done by the act of the Union, and 
 several statutes for triennial and septennial elections. 
 It can in short, do every thing that is not naturally im- 
 possible ; and tlierefore some have not scrupled to call 
 its power, by a figure rather too bold, the omnipotence 
 of Parliament." 
 
 The editor in a note says : 
 
 "By this is meant that Parliament is potent above 
 all other ]jowers in the realm, and whatever it shall as- 
 sume to do no one else may (juestion. It is not a law- 
 making power merely, but may execute laws through its 
 own agencies, and at its discretion may dispose of 
 rights, and even take away life, as has often been done 
 by means of bills of attainder." 
 
 The Supreme Court of the United States, in Kil- 
 bourn v. Thompson, 103 U. S. 168, et seq. (A. D. 1880), 
 discuss the powers of Parliament under the English 
 Constitution and the powers of legislatures under 
 American Constitutions. Say the court, page 170 : 
 
 **This is an action for false imprisonment brought 
 by Hallett Kilbourn against John C. Thompson, Mi- 
 chael C. Kerr, John M. Glover, Jeptha D. New, Bur- 
 well P. Lewis and A. Herr Smith. The declaration 
 charges that the defendants, with force and anns, took 
 the plaintiff from his house and without any reasonable 
 or probable cause, and against his will confined him in 
 the comanon jail of the District of Columbia for the 
 period of forty-five days." 
 
 Defendant Thompson made a s]~)ecial plea (set out 
 at length) that he was sergeant at anns of the House of 
 Representatives and confined Kilbourn in jail under 
 the orders and judgment of the House of Representa- 
 tives for contempt of the House. The plea of defend- 
 ant Thompson set out in detail and with minuteness
 
 310 Law of Loa\L Taxation. [Chap. 13 
 
 the facts and circumstances leading up to the impris- 
 onment of Mr. Kilbouru. He was a witness before a 
 committee of the House and refused to answer certain 
 questions. Tlie United States was a creditor of Jay 
 Cooke & Company who went into bankruptcy and cer- 
 tain settlements had been made. Fraud was charged 
 and the committee were to inquire into the matter and 
 report to the House. The committee summoned Mr. 
 Kilboum as a witness to bring before the committee 
 certain books and accounts and papers. Mr. Kilbourn 
 refused to bring the books, accounts and papers and re- 
 fused to answer certain questions and he was com- 
 mitted for contempt. The court, after referring to 
 the powers of the House of Commons say, page 183 : 
 
 ''It is important, however, to understand on what 
 principle this power of the House of Commons rests, 
 that we may see whether it is applicable to the two 
 houses of Congress, and if it be, whether there are lim- 
 itations to its exercise. 
 
 "While there is, in the adjudged cases in the En- 
 glish courts, little agreement of opinion as to the ex- 
 tent of this power and the liability of its exercise to be 
 inquired into by the courts, there is no difference of 
 opinion as to its origin. This goes back to the period 
 when the bishops, the lords, and knights and burgesses 
 met in one body, and were, when so assembled, called 
 the High Court of Parlioment. They were not only 
 called so, but the assembled Parliament exercised the 
 highest functions of a court of judicature, represent- 
 ing in that respect the judicial authority of the king in 
 his court of Parliament. WTiile this body enacted laws, 
 it also rendered judgments in matters of private nght, 
 which, when approved by the king, were recognized as 
 valid. Upon the separation of the Lords and Commons 
 into two sex>arate bodies, holding their sessions in dif- 
 ferent chambers, and hence called the House of Lords
 
 Chap. 13] State of Constitutional Law. 311 
 
 and tlie House of Coimnoiis, the judicial function of 
 reviewing by appeal the decisions of the courts of 
 Westminster Hall passed to the House of Lords, where 
 it has been exercised without dis])ute ever since. To 
 the Conunons was left the i)Ower of impeachment, and, 
 perhaps, others of a judicial character, and jointly they 
 exercised, until a very recent period, the power of pass- 
 ing bills of attainder for treason and other high crimes 
 which are in their nature punishment for crime de- 
 clared judicially by the High Court of Parliament of 
 the Kingdom of England." 
 
 In City of Kansas to use of Coates v. Ridenour, 
 84 Mo. 253, at 261 (Oct. term, 1884), the Supreme 
 Court of Missouri said : 
 
 ''When sued on a special tax-bill, he (the property- 
 owner) may attack the contract, set off against his lia- 
 bility damages from its negligent or imperfect per- 
 formance or entirely defeat a recovery by overthrow- 
 ing the theory of benefits conferred. [Creamer v. 
 Bates, 49 Mo.' 523; Corriga)i v. Gage, 68 Mo. 541; Ral- 
 pin V. Campbell, 71 Mo. 493.]" 
 
 Evidently the court had in mind the constitutional 
 doctrines so often announced that even if there was a 
 general benefit the tax was unconstitutional. ''When 
 sued on a special tax-hill," how is the property-owner 
 to overthrow the theory of benefits ! 
 
 In Moherly v. Hogan, 131 Mo. 19, at 22, bottom of 
 page, the Supreme Court of Missouri say: 
 
 "At the trial the court refused to allow defend- 
 ant's offer of testimony to show that the lot was not 
 benefited, but that its value was destroyed thereby." 
 
 "The trial court committed no error in excluding 
 defendant's evidence offered." \F. 24, top, same case.] 
 
 It is not competent to show in evidence that "the 
 lot was not benefited." It is not competent to show 
 that ' ' its value was destroved thereby. ' ' This lot could
 
 312 Law of Local, Taxation. [Chap. 13 
 
 not be taken for public use without just compensation. 
 It could not be damaged for public use without just 
 compensation, but in a case where "the lot was not ben- 
 efited, " in a case where ' ' its value was destroj^ed, ' ' a 
 special tax to pay the cost of doing that which was not 
 a benefit to the lot ; a special tax to pay the cost of do- 
 ing that which destroyed its value, is a valid tax. The 
 lot cannot be damaged for public use without just com- 
 pensation, but its value may be destroyed and the lot 
 may be made liable for the cost of such destruction, 
 either total or partial. 
 
 In Keith v. Bingham, 100 Mo. 300, the Supreme 
 Court of Missouri affirmed a judgment enforcing a tax- 
 bill for grading a street in Kansas City, which gi^ading 
 damaged the lot. No damages were ever paid or of- 
 fered to any one. If the city may make a contract to 
 damage private projDerty for public use without pay- 
 ing for it, why may not the city make a contract to 
 take it without paying for it? In all cases the contrac- 
 tor is not the landowner ; the landowner makes no con- 
 tract. 
 
 ''It may be observed, in the first place, that there is 
 no attempt here to exercise the power of eminent do- 
 main for it was not proposed to condemn the defend- 
 ant's property to public use, and it is unnecessary to 
 discuss the character, extent or limitation of that pow- 
 er." [Inhahitants of Palmyra v. Morton, 25 Mo. 593, 
 loc. cit. 595.] 
 
 The Constitution prohibits a name and not a thing. 
 "Private property shall not be taken or damaged for 
 public use without just compensation," now reads 
 thus: "Private property shall not be condemned for 
 public use or damaged by condenmation for public use 
 without just compensation." 
 
 The present state of constitutional law in refer- 
 ence to what is called local taxation is this : The power
 
 Chap. 13] State of Constitutional h\w. 313 
 
 of the State to tax was unlimited. The Constitution of 
 1875 made no limit or restriction on local taxation. 
 Prior to 1875 in Missouri, the legislative power was 
 subject to one limitation on the tax power, and one 
 alone— "property nmst be taxed according to value," 
 but the tax might have been one hundred per cent of 
 the value. Now the legislative power may authorize 
 the construction of roads aaid streets, and may author- 
 ize them to be paved, graded and improved, and the 
 cost thereof to be assessed to abutting land, even if the 
 work done be a damage prohibited by the Constitution. 
 
 The legislative power in the State may tax occupa- 
 tions to the etxent of one hundred per cent of the 
 amount received by the employee. Taxation must be 
 uniform throughout the territorial limits of the author- 
 ity levying the tax, but this does not apply to local 
 taxes. But if a lot is taxed according to frontage, then 
 "each front foot thereof is assessed alike" (80 Mo. 
 391). A local tax that takes every thing owned by the 
 taxpayer is certainly not lacking in unifoimity. And 
 if every person having an occupation were taxed one 
 hundred per cent of his receipts, tlien every dollar he 
 receives is taxed just like every other dollar he re- 
 ceives, and just like eveiy dollar any other employee 
 may receive. 
 
 The tax takes one hundred cents of each and ever>' 
 dollar he has. The local tax ought to be less than one 
 hundred per cent. The legislative power ought not to 
 be authorized to take the whole value of the property 
 in the way of a local tax. A limitation to that effect 
 should be put on tliat power. 
 
 It is HOW the constitutional law of the United States 
 that local taxes may he levied on abutting property to 
 pay for improving roads a/nd streets to the extent of 
 one hundred per cent of the value of the abutting land, 
 although the abutting land may be damaged by the im-
 
 314 Law of Local Taxation. [Chap. 13 
 
 provemenf for which the tax may be levied. The courts 
 can afford no remedy. 
 
 Wliat are the reasons which prevent judicial inter- 
 ference will now be inquired into.
 
 CHAPTER 14. 
 
 REASONS WHICH PREVENT JUDICIAL INTERFERENCE. 
 
 By the Constitution of the United States, article 
 1, section 10, no State shall pass any law impairing the 
 obligation of contracts. Nearly every state constitution 
 contains the same or like provision. In the sense of 
 the prohibition used in the Constitution of the United 
 States it includes all laws. The ordinances of city 
 councils, statutes enacted ))y the legislative power and 
 state constitutions are all included. The prohibition is 
 absolute and complete as to the whole State, and all 
 the agencies through which the State may act. 
 
 The highest .judicial tribunal of each state con- 
 strues the Constitution and statutes of the State and 
 the interpretation so placed on the Constitution and 
 statutes becomes a part thereof the same as if copied 
 into the statutes and Constitution. 
 
 In Christie v. Pridgen, 4 Wall. 196 (A. D. 1866), a 
 statute of Mexico was involved. The statute was en- 
 acted before Texas was admitted as a State and the 
 Supreme Court of Texas had construed this statute of 
 Mexico. Say the court, page 203 : 
 
 "The law of 1824, though general to the Eepublic 
 of Mexico, was, so far as it affected lands within the 
 limits of Texas, after the independence of that coun- 
 try, a local law of the new State— so much so as if it 
 had originated in her legislation. It had at the time no 
 operation in any portion of what then constituted the 
 United States. The interi)retation, therefore, placed 
 upon it by the highest court of that State must, aceord- 
 
 (315)
 
 316 Law of Local Taxation. [Chap. 14 
 
 ing to the established principles of this court, be ax?- 
 cepted as the true interpretation so far as it applies to 
 titles to lands in that State, whatever may be our opin- 
 ion of is original soundness. Nor does it matter that 
 in the courts of other States, carved out of territory 
 since acquired from Mexico, a different interpretation 
 may have been adopted. If such be the case, the courts 
 of the United States will, in conformity with the same 
 principles, follow the different rulings so far as it af- 
 fects titles in those States. The interpretation ivithm 
 the jurisdiction of one State becomes a part of the law 
 of that State as much so as if incorporated into the body 
 of it by the Legislature. If, therefore, different inter- 
 pretations are given in different states to a similar lo- 
 cal law, that law in effect becomes by the interpreta- 
 tions, so far as it is a rule for our action, a different law 
 in one State from what it is in the other. 'That the 
 statute laws of the states' says Mr. Justice Johnson, in 
 delivering the opinion of this court in Shelby v. Guy, 
 (11 AYheaton 367), 'must furnish the rules of decision 
 of this court, so far as they comport with the Constitu- 
 tion of the United States, in all cases arising within the 
 respective states, ' is a position that no one doubts. Nor 
 is it questionable that a fixed and received construction 
 of their respective statute laws, in their own courts, 
 makes, in fact a part of the statute law of the country, 
 however we may doubt the propriety of that construc- 
 tion. It is obvious that this admission may at times in- 
 volve us in seeming inconsistencies— as where states 
 have adopted the same statute, and their courts differ 
 in the construction. Yet that course is necessarily in- 
 dicated by the duty imposed upon us, to administer, as 
 between certain individuals, the la^^s of the respective 
 states according to the best lights we possess of what 
 those laws are." 
 
 Illinois and Missouri have a voluntary assignment
 
 Chap. 14] Why No Judicial Interference. 317 
 
 law couched in ahiiost the same language. The Su- 
 preme Court of Missouri jmt a certain construction on 
 her assignment law. Illinois put a different construc- 
 tion on her law. The Missouri statute is a different 
 statute from the Illinois statute solely from the differ- 
 ent interpretations put by the Supreme Court of each 
 State on its own statute. [Chicago Union Bank v. Kam- 
 sas City Bank, 136 U. S. 223, at 235; White v. Cotz- 
 hausen, 129 U. S. 329.] 
 
 The same principle will apply to constitutions. Tlie 
 interpretation put on the Constitution of a State by its 
 highest judicial tribunal becomes a part of that Consti- 
 tution the same as if copied into it. 
 
 The principle is well illustrated in Township of 
 Pine Grove v. Talcott, 19 Wall. 666 (decided in the Su- 
 preme Court of the United States in October, 1873, un- 
 der act of the Legislature of :\richigan, approved March 
 22, 1869, under the Constitution of the State adopted 
 in 1850). The Supreme Court of Michigan put a con- 
 struction on her Constitution adopted in 1850. The Su- 
 preme Court of the United States in this case overruled 
 that construction, holding that the Supreme Court of 
 Michigan had erred in construing her state Constitu- 
 tion. The Constitution of the State of Michigan, 
 adopted in 1850, contained this provision (art. 14, sec. 
 6) : ''The credit of the State shall not be granted to 
 or in aid of any x)erson, association or coi-poration. " 
 
 The act of the Legislature of Michigan provided : 
 "That it shall be lawful for any township or city to 
 pledge its aid to any railroad company now chartered, 
 organized, under and by virtue of the laws of the State 
 of Michigan, in the construction of its road by loan or 
 donation with or without conditions," etc. The aid 
 was not to exceed ten ]ier cent of the assessed valuation 
 of the city or township and was to be authorized by 
 popular vote. The Supreme Court of Michigan say :
 
 318 Law of Local Taxation. [Chap. 14 
 
 "All these provisions were incorporated by the 
 people in the Constitution as precautions against inju- 
 dicious action by themselves, if in another time of infla- 
 tion and excitement they should be tempted to incur the 
 like burdensome taxation in order to accomplish public 
 improvements, in cases where they were not content to 
 wait the result of private enterprise. The people meant 
 to erect such effectual barriers that if the temptation 
 should return, the means of inflicting like injuiy upon 
 credit, reputation, and prosperity of the State should 
 not be within the reach of the authorities. They be- 
 lieved these clauses of the Constitution accomplished 
 this purpose perfectly ; and none of its provisions had 
 more influence in recommending that instrument to the 
 hearty good will of the people. In process of time, how- 
 ever, a majority in the Legislature were found willing, 
 against the solemn warning of the executive, to resort 
 again to the power of taxation in aid of internal im- 
 provement. It was discovered that though the State 
 was expressly inhibited from giving such aid in any 
 forai, except in the disposition of grants made to it, the 
 subdivisions of which the State was comj^osed were not 
 under the like ban. Decisions in other States were 
 found which were supposed to sanction the doctrine 
 that under such circumstances, the State might do in- 
 directly, through its subdi\Tisions, what directly it was 
 forbidden to do. Thus a way was opened by which the 
 whole purpose of the constitutional provisions quoted 
 might be defeated. The State could not aid a private 
 corporation with its credit, but it might require each 
 of its townships, cities and villages to do so. The State 
 could not load down its people with taxes for the con- 
 struction of a public improvement, but it might compel 
 the municipal authorities, which were its mere crea- 
 tures and which held their whole authority and their 
 whole life at its will, to enforce such taxes, one by one, 
 until the whole people were bent to the burden."
 
 Chap. 14] Why No Judicial Interference. 319 
 
 "Now, whatever might be the just and proper con- 
 struction of similar provisions in the constitution ol" 
 states whose history has not been the same with our 
 own, the majority of this court thought, when the pre- 
 vious case was before us, and they still think, that these 
 provisions in our Constitution do preclude the State 
 from loaning the public credit to private corporations, 
 and from imposing taxation upon its citizens, or any 
 portion thereof, in aid of the constniction of railroads. 
 So the people supposed when the Constitution was 
 adopted. Constitutions do not change with the varying 
 tides of public opinion and desire; the will of the peo- 
 ple therein recorded is the same inflexible law until 
 changed by their own deliberate action; and it cannot 
 be peraiissible to the courts that, in order to aid eva- 
 sions and circumventions, they shall subject those in- 
 stiiiments, which in the main only undertake to lay 
 down broad general principles, to a literal and technic- 
 al construction as if they were great public enemies 
 standing in the nay of progress^ and the duty of every 
 good citizen was to get around their provisions ivhen- 
 ever practicable, and give them a damaging thrust 
 whenever convenient. They must construe them as the 
 people did in their adoption, if the means of arri\dng 
 at that constniction are within their power. In these 
 cases we thought we could arrive at it from the public 
 history of the times." [Bay City v. State Treasurer, 
 23 Mich. 499, et seq., and The People v. Salem, 20 
 Mich. 452.] 
 
 This case in the Supreme Court of Michigan (20 
 Mich, supra) was heard in the Supreme Court of Mich- 
 igan on April 7, 8, 12, 13, 14, 15 and May 24, 25, 1870, 
 and decided May 26, 1870. The printed report occu- 
 pies seventy-two pages. The special act of the Legis- 
 lature was passed in 1864. The work was done on or 
 about Julv 1, 1868. The suit was begun in Julv 1868,
 
 320 • Law of Local Taxation. [Chap. 14 
 
 This is not stated in terms in the reported ease, but the 
 work was done at that time which, by the contract, en- 
 titled the railroad to the delivery of the bonds, and rail- 
 roads are never gnilty of the least negligence in de- 
 manding municipal bonds. The case of the People v. 
 Salem was mandamus to compel the city to issue and 
 deliver the bonds. Bat/ City v. State Treasurer, 23 
 Mich., supra, was mandamus to compel the state treas- 
 urer to return bonds to Bay City, issued under act of 
 March 22, 1869. The decision in the Supreme Court 
 of Michigan was rendered at its October term 1871. 
 
 The question in Totvnship of Pine Grove v. Tal- 
 ciitt, 19 Wall. 666, was one of power. Section 6 of ar- 
 ticle 14 of the Constitution of Michigan said: "The 
 credit of the State shall not be granted to or in aid of 
 any person, association or corporation." This was 
 thought to be a restriction on the whole State, its Leg- 
 islature, its governor and its courts. And the whole in- 
 cluded all the parts and all parts of the State were 
 limited and restrained by this provision. These decis- 
 ions became a part of the Constitution of Michigan 
 the same as if copied into it. 
 
 By the act of the Legislature of Michigan of 
 March 22, 1869, it became lawful "For any township 
 or city to pledge its aid to any railroad conipany, etc., 
 to an amount not to exceed ten per cent of the assessed 
 value of the property to be taxed. ' ' 
 
 In 1870 and 1871 the Supreme Court of Michigan 
 decided that the state Constitution prohibited what was 
 attempted under the act of the Legislature of Michigan 
 of March 22, 1869, only one or two years before. The 
 Supreme Court of the United States held that the Con- 
 stitution of Michigan authorized what the Supreme 
 Court of Michigan held that it prohibited. In Town- 
 ship of Pine Grove v. Talcutt, 19 Wall. 666, at 674, the 
 court say :
 
 Chap. 14] Why No Judicial Interference. 321 
 
 **In 1863 began a series of s))ecial legislative acts 
 authorizing the niunieipal sulxlivisions of the State 
 named therein to give their aid respectively to the ex- 
 tent and in the manner prescribed. Between that time 
 and the year 1869 thirty such statutes were enacted. 
 In the latter year the general law was passed under 
 which the bonds in question were issued. This sum- 
 mary shows the understanding in the Legislature and 
 out of it, in the State, that there was no constitutional 
 prohibition against sueh legislation. It does not ap- 
 pear that its validity was ever in any instance judic- 
 ially denied until the year 1870." 
 
 In the Constitution of the United States, article 1, 
 section 10, we find this restri«'tion: "No State shall pass 
 any law impairing the obligation of contracts." The 
 Toumship of Pine Grove v. Talcutt was decided in tbe 
 United States Supreme Court in 1873, eighty-four 
 years after the adoption of this provision in the Con- 
 stitution of the United States. At page 677 the court 
 
 "It does not belong to courts to interpolate consti- 
 tutional restnctions. Our duty is to apply the law, not 
 to make it. All power may be abused where no safe- 
 guards are provided. The remedy in such cases lies 
 with the people, and not with the judiciary." 
 
 Now what remedy have the people! Here certain 
 officers issued bonds. Judgment is rendered against 
 the townshi]!. The contention was, the officers acted 
 without authority. This is quite different from an 
 abuse of authority. Officers cannot abuse an authority 
 they do not have. The case is one of a want of author- 
 ity—a failure to give nuthoiity or the exercise of an 
 authority positively prohibited. Doing a thing prohib- 
 ited is not an abuse of the prohibited power. It would 
 not be an abuse of a non-existent power, much less 
 
 21
 
 322 Law of Locai. Taxation. [Chap. 14 
 
 would it be an abuse of a prohibited power. Here the 
 State prohibited the thing done. The state Constitu- 
 tion was so interpreted. What safeguard is it possible 
 for the people of Michigan to make to remedy the thing 
 done without authority! 
 
 Constitution of Michigan, article 14, section 6, 
 says: ''The credit of the State shall not be granted 
 to or in aid of any person, association or corporation." 
 
 Constitution of Michigan, article 15 section 13, 
 says: "The Legislature shall provide for the incorpo- 
 ration and organization of cities and villages, and shall 
 restrict their powers of taxation, borrowing money, 
 contracting debts, and loaning their credit. ' ' Wliy were 
 ''cities" and "villages" named and "townships" left 
 out ? Why were towns left out I ' ' Cities ' ' and ' ' vil- 
 lages ' ' have the powers of taxation, borrowing mioney, 
 contracting debts and loaning their credit; otherwise, 
 how can the Legislature restrict these powers or any 
 other powers that do not exist. 
 
 "The language of this clause clearly implies that 
 the powers to be restricted may be exercised and what 
 is implied is as effectual as what is expressed." [S. C, 
 
 19 Wall. 1. c. 676.] 
 
 "What is implied in a statute, pleading, contract 
 or will is as much a part of it as what is expressed. [2 
 Paines Rep. 251, Koning v. Bayard; 3 Wend. 25H, 
 Haiglit v. Holley; 10 Wend. 218, Bogers v. Neeland; 
 
 20 Wend. 447, Fox v. Phelps; Com. Dig., tit. "Devise," 
 n. 12.]" 
 
 According to this reasoning, cities and villages 
 have the following powers : 
 
 1. Power of taxation ; 
 
 2. Power of borrowing money ; 
 
 3. Power of contracting debts ; 
 
 4. Power of loaning their credit. 
 
 These powers are granted by the Constitution of
 
 Chap. 14] Why No Judicial Interference. 323 
 
 Michigan and not by her Leg-islature. The argument 
 is tliat the Constitution of ^licliigan gives her cities 
 and villages the power of taxation and the other pow- 
 ers named. The Constitution of Michigan gives her 
 cities power to tax property one hundred i)er cent, to 
 tax occupations one hundred per cent, unless the Legis- 
 lature restrict them. These cities can borrow all the 
 coined money of the world unless the Legislature re- 
 strict them. Any one city in ]\richigan may loan its 
 credit to the extent of ten times the national debt in- 
 curred in the war between the states in 1861-5, unless 
 the Legislature restrict it. (Notwithstanding this lan- 
 guage in the Constitution, the Supreme Court of Mich- 
 igan held that there was no power in the Legislature to 
 authorize the issue of bonds.) 
 
 In Tonnship of Pine Grove v. Talcutt, 19 Wall, at 
 677, the court say : 
 
 "The question before us belongs to the domain of 
 general jurisprudence. In tliis class of cases this court 
 is not bound by the judgment of the courts of the States 
 where the cases arise. It must hear and determine for 
 itself. Here conmiercial securities are involved. When 
 the bonds were issued, there had been no authoritative 
 intimation from any quarter that such statutes were in- 
 valid. The Legislature affinned their validity in every 
 act by an implication equivalent in effect to an express 
 declaration. And during the period covered by enact- 
 ment, neither of the other dei^artments of the govern- 
 ment of the State lifted its voice against them. The ac- 
 quiescence was universal. 
 
 **The general understanding of the legal profes- 
 sion throughout the country is believed to have been 
 that they were valid. The national Constitution for- 
 bids the States to pass laws impairing the obligation 
 of contracts. In cases properly brought before us, that 
 end can be accomplished unwarrantably, no more by 
 judicial decisions than by legislation. Were we to yield
 
 324 Law of Local Taxation. [Chap. 14 
 
 in cases like this to the authority of decisions of the 
 courts of the respective States we should abdicate the 
 perfonnance of one of the most important duties with 
 which this tribunal is charged and disappoint the wise 
 and salutaiy policy of the framers of the Constitution 
 in providing for the creation of an independent Federal 
 judiciary. The exercise of our appellate jurisdiction 
 would be but a solemn mockery. ' ' 
 
 The decision of the highest judicial tribunal in the 
 State on the Constitution or statute law of the State 
 becomes a part of such statute law or Constitution the 
 same as if written into the Constitution or statute law. 
 This was recognized in Missouri as the general inile of 
 law in 1835, in the case of the State of Missouri at the 
 relation of Gentry et ux v. Frey et al., in 4 Mo. 120, et 
 seq. 
 
 The relator, Gentry, sued on the bond made by de- 
 fendants as principal and sureties on the guardian's 
 bond as the guardian of Elvira Frey. Gentry stated 
 that Elvira Frey had certain property and money in 
 the hands and under the control of her guardian, Frey. 
 After the guardian had had control of this property, 
 Gentry married the ward and the property thus became 
 his by the marriage, and the guardian refused to de- 
 liver or pay the money to Gentry, the husband. 
 
 The defendants set up a denial of the right of Gen- 
 try to the money and property of his wife in the hands 
 of the guardian, for the reason that the bonds of matri- 
 mony between Gentry and wife had been dissolved by 
 the Legislature of Missouri. Plaintiff demurred to this 
 plea. The reader curious enough to read this divorce 
 act will find it in Missouii Session Acts 1832-3, ]>age 
 131. There and in contiguous pages the reader will 
 find 47 divorces granted by the Missouri Legislature 
 on three days in February 1833 (and not very good 
 days for divorces either). One of these acts grants a
 
 CLap. 14] Why No Judicial Interference. 325 
 
 divorce, giving as a reason for it that under existing 
 law the i)arties were not entitled to such divorce. It 
 will be found on page 133, chapter 101. 
 
 In these cases the reader will notice that the Mis- 
 souri Legislature claimed the omnipotence of the En- 
 glish Parliament, indejjendent of and against the Con- 
 stitution of Missouri. These chapters show something 
 of the ideas and notions at that time, of the Legislature 
 and its powers. The Legislature does all sorts of 
 things. In chapter 97, page 129, the preamhle recites 
 that the wife abandoned the husband on their way up 
 the Mississippi, at St. Louis. In chapter 98 the husband 
 maltreats the wife and child, "and whereas the law of 
 this State giving to the circuit court cognizance over 
 such cases, does not cover the ease of the said Sarah, ' ' 
 etc., etc., **and consequently she has no redress but by 
 and through the General Assembly," etc., therefore the 
 Legislature gives them the divorce. 
 
 In chapter 101, the husband absents himself with- 
 out cause, and the wife ''commenced a suit for a di- 
 vorce in the Third judicial circuit in this State and the 
 judge of said circuit court dismissed said Mary Ann's 
 petition on account of a technicality, and, whereas it is 
 represented that the said Maiy Ann is extremely poor 
 and is but little able to pay the expenses of a second 
 suit, for remedy whereof and because the General 
 Assembly believes she is entitled to divorce from tlie 
 bonds of matrimony by her contracted with said 
 David," etc., therefore the Legislature grants the di- 
 vorce. 
 
 Here our Missouri Parliament, ''The High Court 
 of Parliament," in effect grants a writ of error to the 
 circuit court, our House of Commons, joining our House 
 of Lords, but the governor, our king, dissented, but our 
 "High Court of Parliam-ent" nevertheless granted the 
 divorce.
 
 326 Law of Local Taxation. [Chap. 14 
 
 The preamble to chapter 102 finds ''that said Eliza 
 has always maiutained an excellent reputation and 
 given no cause for desertion by her husband; and, 
 whereas, said Eliza has attempted to obtain her divorce 
 at law and by the common course and practice of the 
 court would have been entitled to her divorce in No- 
 vember last (i. e., 1832) had not continuance been 
 given by the negligence of her counsel or the fault of 
 the court, therefore the divorce is granted by the Leg- 
 islature, also the sole custody of the child by said hus- 
 band. ' ' 
 
 By chapter 105, Solomon and Susan were married 
 in 1827 and in 1828 separated, then again came back 
 and again separated ; the last separation was under ar- 
 ticles of separation which the husband supposed was 
 a divorce, and on that supposition had married Eliza- 
 beth, and at the Januaiy term, 1832, the wife filed her 
 petition for a divorce thereby showing she desired to 
 be relieved from her bonds of matrimony ; and tlie hus- 
 band having married Elizabeth, upon the supposition 
 that the articles of separation were a divorce, there- 
 fore the divorce is granted. The legislative act seems 
 to be in the nature of a specific execution in equity of 
 what one party supposed was the efflect of the articles 
 of separation. This was the decree of our Missouri 
 House of Lords, the House of Commons assenting 
 thereto, and the divorce was granted although the king 
 dissented. Our Missouri Parliament divorced in this 
 way, our Henry VIH. from Catherine of Aragon. 
 Everybody is a sovereign here without any constitu- 
 tional restraints. 
 
 By chapter 107, Francis and Martha had been mar- 
 ried and each had sued for divorce, but both petitions 
 had been dismissed for failure to give security for 
 costs; therefore, the Legislature divorced them. 
 
 These are special acts for individual cases — a sort
 
 Chap. 14] Why No Judicial Interference. 
 
 32' 
 
 of retail divorce; but tiie Legislature did a wholesale 
 business in cliai)ter 90, consisting of thirty-nine sec- 
 tions, each section being a divorce of a pair unhappily 
 mated acwrding to the legislative determination. 
 
 State of Missouri ex rel. Gentnj et ux v. Frey et 
 id., 4 Mo. 120, et seq., was decided in the Supreme 
 Court of Missouri at its August term, 1835, reported 
 in 1837. Elvira Frey, a minor, was owner of certain 
 property then in guardian's hands and control, ^^^lile 
 yet a minor she was married to Gentry ; then came the 
 legislative divorce in 1833. Gentry, after the legisla- 
 tive divorce, brought suit on the guardian's bond 
 against the guardian and sureties on the guardian's 
 bond. The sureties set up the legislative divorce as a 
 divestiture of title from Gentry, the husband, to the 
 property of the wife in the guardian's hands. To this 
 plea in bar there was a demurrer founded on the inva- 
 lidity of the legislative divorce. The Supreme Court of 
 Missouri held the act unconstitutional on three 
 grounds : 
 
 1. The act was retrospective in its operation. 
 [This would have been no objection under the English 
 Constitution; it was no objection under the Constitu- 
 tion of the United States.] 
 
 2. It was judicial action on the part of the Legis- 
 lature, forbidden by article 2 of the state Constitution. 
 [The powers of government shall be divided into three 
 distinct departments, each of which shall be confided to 
 a separate magistracy ; and no person charged with the 
 execution of ijowers properly belonging to one of these 
 departments, shall exercise any power properly be- 
 longing to either of the others, except in the instances 
 hereinafter expressly directed or permitted.] 
 
 3. The legislative act impaired the obligation of 
 the contract (marriage) between Gentry and wife by 
 which contract he became entitled to her property.
 
 328 Law of Local Taxation. [Chap. 14 
 
 At page 183 the court say : 
 
 "This contract must be within the prohibition, un- 
 less there is something in the nature of the subject 
 which would in equity and in the nature of the thing, 
 take it out of the provision. In this case no such equity 
 nor necessity has been shown, nor is it believed that 
 any exist. If it is constitutionally true that no law can 
 be passed to impair the obligation of a contract to pay 
 money, to build a house, or dig a ditch, why ought it to 
 be less true that a law can not be passed to deprive a 
 person, against his consent, of the rights accruing to 
 him by the contract of marriage. If A. promise to build 
 a house for B. and fail to do it, can the Legislature of 
 the State say he is not bound to build the house nor pay 
 damages for the failure ? If they can not do this, how 
 does it happen they can, upon any principles known to 
 reason and sound logic, declare that the wife, who was 
 B.'s, shall no longer be his, and that the parties are 
 henceforth discharged from all obligations towards 
 each other, to fulfill the duties by them contracted to 
 be fulfilled. An answer is attempted to be given to this 
 proposition which I think is no just answer. It is this, 
 that marriage is a contract of a character highly mu- 
 nicipal, and that society cannot exist without a power 
 somewhere in a State to divorce married persons. It 
 is agreed that marriage is highly municipal in its char- 
 acter ! that is, the law of the land must declare who can 
 and who can not marry; it must define what words, 
 ceremonies and forms are requisite to form the con- 
 tract ; it must declare the rights and duties of the par- 
 ties, and lastly, it must declare what shall be the conse- 
 quences to the parties, in case of a failure to comply 
 with the contract. It is also agreed that in every well- 
 governed State, there should be a power to divorce, or 
 rather to release the injured party from the other who 
 has broken his contract. But to release the injured
 
 Chap. 14] Why No Judicial Interfebence. 329 
 
 party from farther performance, wliere there has been 
 a breach of the agreement by the other, is not in any 
 reasonable view of the subject, impairing the obliga- 
 tion of the contract; but is rather providing a remedy 
 by which some compensation is made for the failure to 
 obey tlie obligation of the agreement. 
 
 *'But again, this answer goes too far. Is it not 
 e(|ually true, that eveiy contract is also highly munic- 
 ipal ? Must not the law of the land declare who can 
 make a contract to dig a well, and what rights the par- 
 ties shall, respectively, have in case this contract is ful- 
 filled or broken? Tn the one case the operator has a 
 right, when he complies with his agreement, to have a 
 compensation. In the other, the owner has the right 
 to the use of the well, and in case of a failure by either, 
 the other has a right to insist on a compensation for 
 the failure. Xow, all contracts are matters of munici- 
 pal regulation, and the Constitution certainly did in- 
 tend to prevent the law-making power from enlarging 
 or lessening the terais and benefits the citizens might at 
 any time secure to themselves by contracts which were 
 lawful at the time they were made. 
 
 ''In the case before the court I think it has been 
 shown that by this marriage, the wife contracted and 
 gave to the husband her person and fortune, subject to 
 the action of the law of the land as it then stood. It is 
 a fixed rule in law, that the law relating to a contract 
 is as much a part of the agreement, as if it were ex- 
 pressed by the parties. If this is true, then the con- 
 tract was that the husband shall have all the personal 
 property of the wife, both in ]X)ssession and in action, 
 subject to this condition, that, as to that portion of the 
 personalty not reduced to ]iossession during cover- 
 ture, it should go to the personal representatives of 
 the wife or to herself in case she survived her husband, 
 and that as to the real estate of the wife, the husband
 
 330 Law of Local Taxation. [Chap. 14 
 
 should be tenant for life of them in case issue capable 
 of inheriting to the wife, is bom alive. Are these ad- 
 vantages and benefits not worth securing to the citi- 
 zens by constitutional guarantj% as much as any others 
 that relate to property f" 
 
 Here we have in Missouri more cases of legislative 
 divorces than Michigan had in reference to railroad aid 
 bonds. The understanding in the Missouri Legislature 
 and out of it seems to have been on a parallel with that 
 of Michigan on railroad aid bonds, and the Missouri 
 Supreme Court seem to have held that legislative di- 
 vorces were proliibited by the Missouri Constitution 
 just as the Michigan Supreme Court held her railroad 
 aid bonds prohibited by the Michigan Constitution. 
 Neither the Supreme Court of Michigan nor that of 
 Missouri seem to have been controlled by street ru- 
 mors. The opinion in Missouri in the Legislature and 
 at the Bar and in the community is similar to that al- 
 leged to exist in Michigan when the bond cases were de- 
 cided. 
 
 State ex rel. Gentry v. Frey et al., has never been 
 overruled in Missouri. As will be seen, various at- 
 tempts were made by the Legislature to grant divorces 
 in Missouri. 
 
 Wliile our Supreme Court in Missouri has never 
 overruled this case, the Legislature paid no attention 
 or at least little attention to the ruling of the court. 
 Two legislative divorces were granted in 1837 (Session 
 Acts 1836-7, pages 311-2); one in 1839 (Session Acts 
 1838-9, page 214); two in 1841 (Session Acts 1840-1, 
 page 176) ; six in 1843 (but these refer the parties to 
 the courts to get divorces, specially in those cases 
 created by legislative act), see Session Acts Missouri 
 Legislature 1842-3, pages 203-5; Session Acts 1844-5 
 pages 83-85. The reader will here find the Bryson di- 
 vorce on page 85; in Session Acts 1848-49, pages 451-
 
 Chap. 14] Why No Judiciaj. Interference. 331 
 
 464, fifty-tliree divorces were granted in a few days in 
 February and March, 1849, nearly fourteen years after 
 such legislative divorces were held unconstitutional by 
 the Supreme Court at the August tenn, 1835, in State 
 ex rel. Gentry et ux v. Frey et ciL, in 4 Mo. 120. This 
 was twelve years after the report (4 Mo.) was pub- 
 lished. 
 
 Revised Statutes of Missouri A. D. 1835, page 401, 
 section 1, is thus: "Marriage is considered in law as 
 a civil contract, to which the consent of the parties cap- 
 able in law of contracting is essential." I can not find 
 this lang-uage in any previous Session Act. This law 
 has been continued thus in Revised Statutes 1845, page 
 729, section 1; Revised Statutes 1855, page 1061, sec- 
 tion 1 ; General Statutes 1865, section 1, page 458 ; Re- 
 vised Statutes 1879, section 3264, vol. 1, page 553; Re- 
 vised Statutes 1889, vol. 2, page 1604, section 6840; Re- 
 vised Statutes 1899, page 1035, section 4311. 
 
 In Bryson v. Rosanna Campbell, 12 Mo. 498-9 
 (Oct. 1849), Bryson had been divorced by special act 
 of the Legislature in February, 1845 (Session Acts 
 1844-5, page 85). His wife, after the divorce, boarded 
 with Rosanna Campbell. The husband refused to pay 
 his wife's boardbill. The plea was that she was not his 
 wife because the Legislature had divorced them and he 
 was not bound to pay it. That was one of the bonds of 
 matrimony from which he was released. Rosanna 
 Campbell had judgment and the cause was removed on 
 error to the Supreme Court, where the judgment be- 
 low was affirmed. 
 
 The court refused to depart from the authority of 
 State ex rel. Gentry et ux. r. Frey et al., 4 Mo. 120, et 
 seq. In the brief for plaintitf in error, counsel say, p. 
 498: 
 
 "The counsel for appellant never having seen the 
 propriety of the decision in the case of State v. Frey, 
 but being well satisfied of the legislative power to
 
 332 Law of Local Taxation. [Chap, l-i 
 
 grant divorces, and believing that the doctrine laid 
 down in that case is not satisfactory to the Bar gener- 
 ally, respectfully solicit a review of the grounds on 
 which it was decided." 
 
 This decision was rendered in October, 1849, after 
 Revised Statutes 1835 went into effect, whereby it was 
 enacted that ''maniage is a civil contract." Mr. Bry- 
 son was by the marriage (this civil contract) bound to 
 board his wife. The Legislature could not relieve Mr. 
 Brj^son from that obligation of the marriage, this civil 
 contract and the act of the Legislature was held void 
 as impairing the obligation of that contract. 
 
 The question came up again in 1853 in Bryson v. 
 Bryson, 17 Mo. 590. The case was a proceeding to ob- 
 tain alimony from the husband because the husband 
 had abandoned the wife without cause, and had re- 
 fused to maintain and provide for her. The defendant 
 Bryson set up the legislative divorce as a release and 
 discharge. The legislative divorce was held unconsti- 
 tutional and the judgment for alimony was affirmed. 
 The court say : 
 
 ''The question is again presented, no doubt, with 
 the hope that in a change of the judges there may be a 
 change in the views of the court," p. 591. The case is 
 put mx)stly on the ground that divorce is a judicial act 
 beyond the powers of the Legislature, but it is also held 
 that such legislative act impairs the obligation of the 
 contract. 
 
 "Those who had not legal cause for seeking a di- 
 vorce or were in too great haste to wait to the end of 
 regular judicial proceedings and have therefore resort- 
 ed to the Legislature to obtain releases from their 
 bonds of matrimony, must be content to take the acts 
 they have obtained without expecting courts to main- 
 tain their validity against the Constitution of the 
 State." [17 Mo. 595.]
 
 Chap. 14] Why No Judicial Intebperence. 
 
 333 
 
 The Bryson case again came up in 1869 in Bry- 
 son by next friend v. Bryson, 44 Mo. 232, et seq., at the 
 March tenn, 1869. Tlie Missouri Constitution of 1865, 
 article 4, section 27, contained this language: *'The 
 General Assembly shall not pass special laws divorcing 
 any named parties;" the last Bryson case above was a 
 suit to increase alimony and the defendant again set 
 uj) the legislative divorce and again it was held uncon- 
 stitutional. 
 
 The constitutional question was again in (juestion 
 in Richeson v. Simmons, 47 Mo. 20, decided in 1870, un- 
 der a divorce granted by the Legislature ]March 2, 
 1849. Here the wife deeded land without her husband 
 joining her (who had been divorced by special act of 
 the Legislature). The husband was considered to have 
 deserted his wife and to have been, as it were, "beyond 
 seas" under general common law, and hence she had 
 all the powers of a femme sole under general common 
 law and could convey her real estate. By his conduct 
 the husband could make no claim to the land. He was 
 estopped. Divorce by act of the Legislature is uncon- 
 stitutional as impairing the obligation of contracts. 
 The husband by the contract of marriage was entitled 
 to the possession and use of the wife's land. He had 
 that right notwithstanding the legislative divorce; 
 otherwise there is nothing to be estopped from; there 
 is nothing for the estoppel *'to feed on." 
 
 The case admits that the legislative divorce im- 
 pairs the obligation of the contract, but the one partA^ 
 to the contract whose contract rights are violated is es- 
 topped to claim his rights under that contract as he 
 might be estopi^ed from claiming contract rights un- 
 der any other contract. The land was virtually the 
 separate property of the wife and she might convey it 
 whether divorced or not. 
 
 David S. Mavnard and Lydia A. MajTiard were
 
 334 Law of Local. Taxation. [Chap. 14 
 
 married in 1828 in Vermont. They went to Ohio in 
 1850. During that year the husband went to Oregon 
 and in September of that year took up his residence 
 there and lived there till his death in 1873. Lydia A. 
 Maynard died in Ohio in 1879. Henry C. Maynard and 
 Mrs. Frances J. Patterson are the children of that 
 marriage and are the plaintiffs in the case of Maynard 
 V. Hill, 125 U. S. 190, et seq. 
 
 In April, 1852, Maynard settled upon a tract of 
 640 acres in Oregon, as a married man, claiming the 
 right to obtain the title to the 640 acres under the act 
 of Congress, United States statutes at Large, vol. 9, 
 496, chap. 76. [See sec. 4.] On December 22, 1852, the 
 legislative assembly of Oregon divorced Maynard and 
 his wife. On January 15, 1853, twenty-four days after 
 the legislative divorce Maynard, the divorced husband, 
 married Catherine T. Brashears and thereafter ihej 
 lived together as husband and wife, till his death in 
 1873. Maynard lived on, cultivated and improved the 
 land from April 3, 1852, to April 3, 1856, the required 
 four years, and on April 30, 1856, applied for a certifi- 
 cate for a donation claim for the 640 acres, entitling 
 him and his second wife to a patent for the land. The 
 officers in charge of the land office at first granted the 
 certificate, the west 320 acres to the husband and the 
 east 320 acres to the second wife. This certificate was 
 annulled by the commissioner of the general land office 
 on the ground that Lydia A. Maynard, the first wife, 
 was supposed to be dead and her heirs were therefore 
 entitled to the land. On a subsequent hearing before the 
 register and receiver, the first wife appeared and those 
 officers awarded the land to her (east 320 acres) and 
 the west 320 acres to the husband. The case was ap- 
 pealed to the commissioner of the general land office. 
 He affirmed the decision giving the west 320 acres to 
 the husband, but reversed the holding giving the east
 
 Chap. 14] Why No Judicial Interference. 335 
 
 half to the first wife. The second wife was not entitled 
 to anything, although slie lived on the land, Ix^^ause she 
 was not his wife in 1850, or within a year thereafter, as 
 provided by the act of Congress. Under this act of 
 Congress the title was to go directly to the wife, and 
 not to the wife through the husband. The executive of- 
 ficers of the United States held that the land still be- 
 longed to the United States and that neither the de 
 facto wife nor the de jure wife had any vested interest. 
 Neither wife had any contract with the United States. 
 This was the decision of the land ofiicers. The land be- 
 ing subject to sale was sold to defendants Hill and 
 Lewis, and patent issued accordingly, and this was a 
 suit in equity to divest their title and vest it in plain- 
 tiffs, children of the first wife, the bill seeking to hold 
 defendants as trustees in invitum, as they were charg- 
 ed to have bought with full notice. Tbe case went from 
 the Supreme Court of Oregon Territory to the Su- 
 preme Court of the United States. At last the de jure 
 wife's claims were held invalid. 
 
 Section 9, article 1, Constitution of the United 
 States, says : "No bill of attainder or ex post facto law 
 shall be passed. " A law impairing the obligation of 
 contracts is not forbidden. 
 
 Section 10, Constitution of the United States says : 
 ''No State shall pass any bill of attainder, ex iX)st facto 
 law or law impairing the obligation of contracts." 
 
 The States are prohibited from passing laws im- 
 pairing the obligation of contracts ; the United States 
 are not. Neither are the United States territories. Con- 
 gress may pass a law impairing the obligation of con- 
 tracts or Congress may authorize the territorial legis- 
 latures to do so. When Oregon adopted her state Con- 
 stitution in November, 1857, legislative divorces were 
 prohibited under article -1-, section 23, subdi^ision 5. 
 ''If the act declaring the divorce should attempt
 
 336 Law of Local Taxation, [Chap. 14 
 
 to interfere with rights of property vested in either 
 party, a different question would arise." [Opinion of 
 the court in Maynard v. Hill, 125 U. S. 190, 1. c. 206, 
 near top.] 
 
 Lender the general common law, all the personal 
 property of the wife becomes the property of the hus- 
 band immediately on the marriage. What becomes of it 
 under a legislative divorce! The opinion seems to in- 
 timate it will remain with the husband. On marriage 
 and birth of issue, the husband has his curtesy. Will a 
 legislative divorce divest the husband of that interest! 
 Congress may pass a retrospective law. Congress may 
 pass a law impairing the obligation of contracts. Con- 
 gress could have passed the divorce act enacted by the 
 Legislature of Oregon Territory, itself the creature of 
 Congress. Congress could have confirmed it or reject- 
 ed it. Congress could act on the subject. Its action is 
 not rendered void by the Constitution of the United 
 States because it is retrospective or impairs the obliga- 
 tion of contracts or divests vested rights. 
 
 In the matter of legal obligation the bonds of mat- 
 rimony ought to be on a par, at least, with municipal 
 bonds and contracts to dig wells or make sewers. 
 
 In all cases in which special tax-bills have been is- 
 sued to pay for public improvements there has been a 
 contract to do the work and that contract imposes cer- 
 tain obligations on the contracting parties. After these 
 public improvements have been made under contracts 
 duly authorized by law, then the legislative power of 
 the State cannot impair in any degree the obligation of 
 the contract. That obligation cannot be impaired in any 
 degree on the part of either party to the contract with- 
 out the consent of the other. The Constitution of the 
 State and the laws of the State are interpreted by the 
 highest judicial tribunal in the State, and it frequently 
 happens that constitutions and statutes are judicially 
 overthrown and perverted.
 
 Chap. 14] Why No Judicial Interference. 337 
 
 The language of the Constitution of the United 
 States is that *'No State shall pass any law impairing 
 the obligation of coiitraets." The law controlling mu- 
 nicipal bonds and that controlling special taxes and 
 tax-bills are the same. There were certain statutes 
 enacted in the various States of the Union authorizing 
 public improvements in the several States. Here is the 
 origin of the state bond and municipal lx)nd and the 
 special tax-bill. Both involve the power of taxation. 
 Both involve contracts. Both result in money obliga- 
 tions, and for raising the required money, taxes are im- 
 posed on the citizens in both cases alike. 
 
 In case the Legislature of the State enact laws au- 
 thorizing the issue of bonds, and then after the bonds 
 are issued and sold on the market and money realized 
 thereon, as evidently intended, the Legislature cannot 
 then enact another law defeating the payment in part 
 or in whole of such bonds issued and delivered and un- 
 paid. The state Legislature in like manner can make 
 laws authorizing contracts for public improvements to 
 be paid in special taxes or tax-bills. After the contracts 
 are made and executed the Legislature cannot enact 
 laws under which the contract shall be held invalid. 
 The State cannot ''Pass a law impairing the obligation 
 of contracts." But what is it for a State to ''Pass a 
 law impairing the obligation of contracts ? ' ' Questions 
 of power or authority come before the courts on bonds. 
 The courts hold that the bonds are issued by authority. 
 Then persons relying on the decisions of the courts as 
 being a part of the law and Constitution so construed, 
 the same as if copied into them, buy the bonds on the 
 faith of such decision and after they have so bought, 
 relying on such bonds and the decision of the courts 
 that they are issued by authority— if then the courts 
 change their decision and hold that the bonds are is- 
 
 22
 
 338 Law of Locat. Taxation. [Chap. 14 
 
 sued without authority, the last decisions overruling 
 the first decisions becomes a part of the Constitution 
 and statute the same as if copied into them. The last 
 decision is contradictory to the first decision. Did the 
 State by such decision of its courts "Pass a law im- 
 pairing the obligation of contracts'?" 
 
 At first glance it would appear that the State did 
 not pass any law at all. But on further reflection this 
 section of the Constitution of the United States ought 
 to be regarded as a statute highly remedial in its char- 
 acter and ought to be so construed as to advance the 
 remedy and suppress the mischief. 
 
 A statute is enacted and the courts hold it consti- 
 tutional and valid; then after contracts are made un- 
 der it and on the faith of the decisions supporting its 
 validity the law is repealed— so repealed in terms as 
 to nullify contracts made under it— the repealing stat- 
 ute cannot thus impair the obligation of contracts. 
 
 A like statute is enacted for public improvements 
 and municipal bonds or special taxes or special tax- 
 bills. Public improvements are made ; tax-bills issued ; 
 suits thereon are brought in the courts resulting in a 
 decision of the highest judicial tribunal in the State 
 holding the tax-bills valid as having been issued by au- 
 thority of a constitutional law. Another public im- 
 provement is ordained to be made and the work is let 
 by contract to the lowest bidder. The work is done. 
 The work is done as required by contract and ordi- 
 nance, and suit is brought to enforce the contract or on 
 tax-bills issued for the work. The Supreme Court held 
 former tax-bills and a former contract valid as having 
 been made by authority of law. That decision is now 
 overruled and the contract and tax-bills in suit are held 
 invalid as made and issued without authority of law. 
 
 Although this result is attained apparently by ju- 
 dicial decision, it is just as ruinous as if accomplished
 
 Cha]). 14] Why No Judicial Interference. 389 
 
 hv legislative act. In each case the contractor's loss is 
 precisely the same. In one case lie relied on the legis- 
 lative act and lost, and in the other he relied on the ju- 
 dicial decision as l)eing the law and lost. Here is a 
 change in tlie law. It is wholly immaterial whether that 
 change in the law is effected by the Legislature or the 
 courts. The State, through her courts, has passed a 
 law impairing the obligation of contracts. 
 
 Speaking of this judicial legislation, the Supreme 
 Court of the United States, in Ohio Life Insurance and 
 Tnist Company v. DeBolf, 16 Howard 1. c. 432 (a writ 
 of error to the Su]ireme Court of the State of Ohio), 
 say: 
 
 ** Indeed, the duty imposed upon this court to en- 
 force contracts honestly and legally made, would be 
 vain and nugatory, if we were ix)und to those changes 
 in judicial decisions which the lapse of time, and 
 change in judicial officers, will often produce. The 
 writ of error to the state court would be no protection 
 to a contract, if we were bound to follow the judgment 
 which the state court had given, and which the writ of 
 error brings up for revision here. And the sound and 
 true rule is that if the contract when made was valid by 
 the laws of the State, as then ex])Ounded by all the de- 
 partments of its government, and administered in its 
 courts of justice, its validity and obligation cannot be 
 impaired by any subsequent act of the Legislature of 
 the State or decision of its courts, aliering the con- 
 struction of the law." (This decision was rendered in 
 1853.) 
 
 The above language is quoted with approval in 
 GelpcTxe r. Dubuque, 1 Wall. 175, at 206 (decided in 
 1863), where the court adds: 
 
 ''The same principle applies where there is a 
 change of judicial decision as to the constitutional 
 power of the Legislature to enact the law. To this rule
 
 o40 Law of Local Taxation. [Chap. 14 
 
 thus enlarged ne adhere; it is the law of this court. It 
 rests upon the plainest principles of justice. To hold 
 otherwise woidd be as unjust as to hold that rights ac- 
 quired- under a statute ma/y he lost by its repeal." 
 
 In Havemeyer v. Iowa County, 3 Wall. 294-, 1. c. 
 303, the court say: 
 
 "The subsequent adjudications in The State v. 
 Leon, decided in 1859, and the cases which followed it 
 hold that such statutes are 'of a general nature' and 
 have no validity until joublished. But being long pos- 
 terior to the time when the securities were issued, they 
 can have no effect upon our decision and may be laid 
 out of view. We can look only to the condition of 
 things which subsisted when they were sold. That 
 brings them within the rule laid down by this court, in 
 Gelpcke v. Dubuque. In that case it was held, that if 
 the contract when made, was valid by the Constitution 
 and laws of the State, as then expounded b}^ the highest 
 authorities whose duty it was to administer them, no 
 subsequent action by the Legislature or judiciary can 
 imi^air its obligation. This ride ivas established upon 
 the most careftd consideration. We think it rests upon 
 a solid foundation, and we feel no disposition to depart 
 from it." 
 
 There is some difficulty in reconciling the decisions 
 on the question of the constitutional powers of the 
 States. The highest judicial tribunal in the State de- 
 termines the constitutional (State) and statute law of 
 the State. Municipal corporations are the creatures of 
 the State and a part of the state government. The state 
 Constitution determines the powers given to the differ- 
 ent departments of the state government. The state 
 Supreme Court determines the constitutional powers 
 of all the departments of the state government, and its 
 decision is final and becomes a part of the state Consti- 
 tution the same as if copied into it. One legislature
 
 Chap. 14] Why No Judicial Interference. 341 
 
 can not by statute law bind tbeir successors and one set 
 of judges can not by any decision bind their successors. 
 Othei-wise we should have no overruled cases. 
 
 In Centred Land Company v. Laidley, 159 U. S. 
 103, et seq. (A. D. 1895), the coui-t discuss this consti- 
 tutional question. It is the legislative powers of the 
 courts. The question came up on the constiniction of a 
 state statute in reference to the statute powers of mar- 
 ried women to make deeds of their lands. 
 
 The state Supreme Court had held such deeds 
 valid under the statute, and thereupon after such decis- 
 ions were rendered and on the faith of such decisions 
 as to the powers conferred by such statute, deeds were 
 taken for land purchased and paid for and these deeds 
 so taken were brought into controversy again and the 
 first decisions were overruled and decision made that 
 the deeds were without authority. Did this last decis- 
 ion impair the obligation of the contract (the warranty 
 deed of the married woman)? Perhaps this is not a 
 coiTect statement of the real matter in controversy and 
 the real wrong done. 
 
 It was the Virginia statute that impaired the obli- 
 gation of the contract, not the court's decision as to 
 what is the statute. It was the statute that was con- 
 trary to the Constitution of the Ignited States not the 
 decision of the court, for that only determined what 
 was the statute. 
 
 We have in 1820 a statute in Virginia authorizing 
 deeds by married women. Subsequently we have no 
 such statute and never had it in 1820 or at any other 
 time. These are legislative acts, so the courts decide, 
 but the courts do not make the statute laws. They 
 only interpret them. 
 
 If the Virginia Legislature had enacted two differ- 
 ent laws, one declaring that the law authorized married 
 women to convey their land at and after 1820 and after
 
 342 Law of Local Taxation. [Chap. 14 
 
 deeds had been made under it, then in 1865 another act 
 should be passed that in 1820 and afterwards married 
 women had no such authority, then we have an exact 
 parallel. The last legislative act ( retrosj^ective in 
 character) imjoaired the obligation of contracts made 
 prior to its passage. These Tvere the acts of the Vir- 
 ginia Legislature. 
 
 The Virginia court was bound to decide what was 
 the statute law of West Virginia, and when the highest 
 judicial tribunal in the State determines what was the 
 statute law of that State that decision was conclusive. 
 No power on earth can declare that is not the statute 
 law of Virginia. 
 
 The assignment of errors presents the point thus, 
 page 107 : 
 
 "1. That the purchase of the said land of the said 
 Pennybackers, and the said deed conveying the same, 
 became an executed contract, which no action of the ju- 
 diciary of the State of West Virginia had any right, 
 authority or power to impair or invalidate by changing 
 the settled construction of said section 4 of chapter 73 
 of the Code of West Virginia of 1868." 
 
 ''2. That under and by virtue of section 10 article 
 1 of the Constitution of the L^nited States, no State is 
 permitted to pass any law impairing the obligation of 
 contracts ; that the statutory constiiiction of the law of 
 West Virginia, as it existed when the contract was 
 made, governed' the rights of the parties, and rights 
 vested under such existing constructions of the then 
 laws cannot be divested, under said clause of the Con- 
 stitution of the United States, bj^ a subsequent decision 
 of the state courts holding contracts invalid that were 
 valid when made; such decisions of the state courts are 
 contrary to the Constitution of the United States." 
 
 "3. Because there appears on the record of said 
 cause a Federal question in this; that the courts of
 
 Chap. 14] Why Nu Judicial Interference. 343 
 
 West Virginia, in construing the said statute relating 
 to deeds and acknowledgments tliereof so as to invali- 
 date the said deed to C. P. Huntington, under which 
 yoiir petitioner claims, changed, without legislative ac- 
 tion, the settled and established construction which ex- 
 isted at the time of the execution and delivery of said 
 deed, which is contrary to the Constitution of the 
 United States; and there is a Federal question 
 raised by said record in this; that the said decis- 
 ion of the circuit court of Cabell county, which un- 
 dei-takes to deprive your petitioner of his property is 
 without due process of law, retroactive in its effect, 
 and unconstitutional." This was a writ of error to the 
 Supreme Court of West Virginia. The court say, page 
 109: 
 
 "The grounds relied on for invoking the apiJellate 
 jurisdiction of this court are, in substance, that by the 
 decision of the Supreme Court of Appeals of West Vir- 
 ginia, wiflioiif any legislative action, the obligation of 
 the contract contained in the deed from ^Ir. and Mrs. 
 Pennybacker to Huntington, the grantor of the plain- 
 tiff in en-or, has been impaired, and the plaintiff in er- 
 ror has been deprived of its i)roperty without due pro- 
 cess of law. " 
 
 "Assuming without deciding, that these gi'ounds 
 were sufficiently and seasonably taken in the courts of 
 West Virginia, we are of the opinion that they present 
 no Federal question. In order to come within the pro- 
 vision of the Constitution of the United States, which 
 declares that no State shall pass any law impairing the 
 obligation of contracts, not only must the obligation of 
 a contract have been imi:)aired, but it must have been 
 State, and not by a decision of its judicial department 
 impaired by some act of the legislative power of the 
 only. 
 
 "The appellate jurisdiction of this court, upon
 
 3-44 Law of Local Taxation. [Chap. 14: 
 
 writ of error to a court on the ground that the obliga- 
 tion of the contract has been impaired, can be invoked 
 only when an act of the Legislature, alleged to be re- 
 pugnant to the Constitution of the United States, has 
 been decided by the state court to be valid, and not 
 when an act admitted to be valid has been miscon- 
 strued by the court. The statute of West Virginia is 
 admitted to have been valid, whether it did or did not 
 apply to the deed in question; and it necessarily fol- 
 lows that the question submitted to and decided by the 
 state court was one of construction only and 
 not of validity. If this court were to assume juris- 
 diction of this case, the question submitted for its de- 
 cision would be, not whether the statute was repugnant 
 to the Constitution of the United States, but whether 
 the highest court of the State has erred in its construc- 
 tion of the statute. 
 
 **As was said by this court, speaking by Mr. Jus- 
 tice G-rier, in such a case, as long ago as 1847: 'It is 
 the peculiar province and privilege of the state courts 
 to construe their own statutes ; and it is no part of the 
 functions of this court to review their decisions or as- 
 sume jurisdiction over them on the pretense that their 
 judgments have impaired the obligations of contracts. 
 The power delegated to us is for the restraint of un- 
 constitutional legislation by the States, and not for the 
 correction of alleged errors committed by their judic- 
 iary." [Commercial Bank v. Buckingham, 5 How. 317, 
 343; Laivler v. Walker, 14 How. 149, 154.] 
 
 ''It was said by Mr. Justice Miller, in delivering a 
 later judgment of this court: 'We are not authorized 
 by the judiciary act to review the judgments of the 
 state courts, because their judgments refuse to give ef- 
 fect to valid contracts or because those judgments, in 
 their effects, impair the obligation of contracts. If we 
 did, every case decided in a state court could be
 
 Chap. 14J Why Xu Judicial Ixteefeiience. 345 
 
 brought here, where the party setting up a contract 
 alleged that tlie court had taken a different view of its 
 obligations to that which he held. ' [Knox v. Exchmige 
 ^a^A:, 12 Wall 379, 383.] 
 
 "The same doctrine was stated by Mr. Justice 
 Harlan, speaking for this court, as follows : * The state 
 court may erroneously determine ciuestions arising un- 
 der a contract which constitutes the basis of the suit 
 before it ; it may hold a contract void which, in our 
 opinion, is valid, or its interpretation of the contract 
 may, in our opinion, be radically wrong; but, in neither 
 of such cases, would the judginent be reviewable by this 
 court under the clause of the Constitution protecting 
 the obligation of contracts against impainiient by state 
 legislation, and under the existing statutes defining and 
 regulating its jurisdiction, unless that judgment in 
 terms or by its necessary operation gives effect to some 
 provision of the state Constitution, or some legislative 
 enactment of the State, which is claimed by the unsuc- 
 cessful party to impair the obligation of the particular 
 contract in question.' [Leldgh Water Co. v. Easton, 
 121 U. S. 388,392.]" 
 
 Other cases are cited without comment. The court 
 continuing say : 
 
 ''The decisions cited by plaintiff in error to sup- 
 port the jurisdiction of this court in the case at bar 
 were either cases in which the writ of error was upon 
 a judgment of a state court which gave effect to a stat- 
 ute alleged to impair the obligation of a contract made 
 before any such statute existed, as in LouisimM v. Pils- 
 hury, 105 U. S. 278; Chicago Ins. Co. v. Needles, 113 
 U. S. 574, and in Mobile and Ohio Bailroad v. Tennes- 
 see, 153 U. S. 486; or else the writ of error was to a 
 circuit court of the United States bringing to this 
 court the whole case, including the question how far 
 the courts of the United States should follow the de-
 
 346 Law of Locai. Taxation. [Cliap. 14 
 
 cisions of the highest court of the State, as in Gelpcke 
 V. Dubuque, 1 Wall. 175, 205; Olcott v. Supervisors, 16 
 Wall. 678, 690; Douglass v. Pike County, 101 U. S. 677, 
 686; Anderson v. Santa Anna, 116 U. S. 356, 361; and 
 other cases cited in Louisiana v. Pilsbury, 105 U. S. 
 278, 295. 
 
 ' ' The distinction as to the authority of this court, 
 between writs of error to a court of the United States 
 and writs of error to the highest court of a State, is 
 well illustrated by two of the earliest eases relating to 
 municipal bonds, in both of which the opinion was de- 
 livered by Mr. Justice Swayne, and in each of which 
 the question presented was whether the Constitution of 
 Iowa permitted the Legislature to authorize municipal 
 corporations to issue bonds in aid of the construction 
 of a railroad. The Supreme Court of the State, by de- 
 cisions made before the bonds in question were issued, 
 had held that it did ; but by decisions made after they 
 had been issued, held that it did not. A judgment of 
 the District Court of the United States for the District 
 of Iowa, following the later decisions of the state court, 
 was reviewed on the merits, and reversed by this court, 
 for misconstruction of the Constitution of Iowa. 
 [Gelpcke v. Dubuque, 1 Wall. 175, 206.] But a writ of 
 error to review one of those decisions of the Supreme 
 Court of Iowa was dismissed for want of jurisdiction, 
 because, admitting the Constitution of the State to be 
 a law of the State, within the meaning of the provision 
 of the Constitution of the United States forbidding a 
 State to pass any law imi>airing the obligation of con- 
 tracts, the only question was of its construction by the 
 state court. [Railroad Co. v. McClure, 10 Wall. 511, 
 515.] 
 
 "When the parties have been fully heard in the 
 regular course of judicial proceedings, an erroneous de- 
 cision of a state court does not deprive the unsuccessful
 
 Chap. 14] AVhy No Judicial Interference. 347 
 
 jjarty of his proi)erty witliout due i)roeess of law, with- 
 in the fourteenth anieudment of the Constitution of the 
 United States. [Walker v. Sauvinet, 92 U. S. 90; Head 
 V. Amoskeag Co., 113 U. S. 9, 26; Marley v. Lake Shore 
 Railroad, 146 U. S. 162, 171; Bergman v. Backer, 157 
 U. S. 655.]" 
 
 The case was dismissed for want of jurisdiction. 
 
 On well-settled principles of general law, the Su- 
 preme Court of the Ignited States cannot reverse the 
 judgment of any state Supreme Court unless that judg- 
 ment is erroneous, and if it is erroneous then tlie Su- 
 preme Court of the United States has no jurisdiction. 
 
 The Supreme Court of Iowa, by a series of decis- 
 ions, held that municipal railroad aid bonds were au- 
 thorized by the state Constitution. Then the question 
 again came up in the Supreme Court of Iowa and that 
 court by a series of decisions held these municipal 
 bonds were without authority in the Constitution of the 
 State. Then the Circuit Court of the United States for 
 the district of Iowa followed the construction of the 
 Iowa Constitution placed on it by the Su]ireme Court 
 of Iowa, and rendered its decision that these Iowa bonds 
 were without constitutional authority. But on hearing 
 the case on error in the Supreme Court of the United 
 States, that judgment was reversed because it was not 
 erroneous. The case was remanded to the United 
 States District Court so that that court could enter a 
 judgment that was erroneous in lieu of the one reversed 
 which was not erroneous. What the state court decides, 
 is erroneous in United States courts; and what United 
 States courts decide, is erroneous in the state courts. 
 
 If the Supreme Court of the United States may 
 disregard the decisions of the highest judicial tribunal 
 in the State on the question of the constitutional power 
 of the State Legislature to enact laws in reference to 
 railroad aid bonds, because commercial securities are
 
 348 Law of IjOcal. Taxation. [Chap. 14 
 
 involved, then they may sweep away the parts of the 
 Constitution prohibiting- the making of eommercial se- 
 curities. The State cannot in this way interfere with 
 commerce. 
 
 The decisions of the Supreme Court of Towa and 
 that of the Supreme Court of the United States, al- 
 though they seemingly conflict with each other, are both 
 right. In Railroad Co. v. McClure, 10 Wall. 511, 515, 
 the State of Towa had adopted a certain Constitution. 
 Municipal corporations apparently had the power 
 (from the language used) to issue railroad aid bonds. 
 Such bonds were issued. Various persons bought the 
 bonds paying therefor their full value, relying on the 
 language and meaning of the Constitution. After the 
 bonds were issued and sold on the market their valid- 
 ity was denied by the municipal corporations issuing 
 them. The corporations claimed that there was no con- 
 stitutional authority to authorize their issue. Suit was 
 brought on some of these bonds ; the answer set up that 
 the bonds were without authority of law ; that they 
 were prohibited by the state Constitution. The case 
 went to the Supreme Court of the State. That court 
 held that the acts of the Legislature of Iowa, authoriz- 
 ing the issue of the bonds, were not in conflict with the 
 Constitution of the State of Iowa ; and the statute was 
 valid and the bonds were issued by authority of law. 
 
 The Supreme Court of Iowa, in thus interpreting 
 the state Constitution, did not pass a law (either im- 
 pairing the obligation of contracts or otherwise). The 
 court merely interpreted what the statute (constitu- 
 tional) law was. The court in no sense passed a law; 
 the people of Iowa and her Legislature did that. The 
 law is a mere expression of the legislative intent. The 
 legislative power may in plain tenns declare its intent. 
 If not declared in plain terms, that intention must be 
 ascertained by the application of various rules of in-
 
 Chap. 14] Why No Judicial Interference. 349 
 
 terpretation. But these rules are merely intended to 
 ascertain the actual legislative intent. What is the ac- 
 tual legislative intent, is a question for the courts and 
 not for the Legislature. This is especially true of the 
 state Constitution. The courts do not enact the state 
 statute laws or pass the laws (impairing the obligation 
 of contracts). "Jus dicere" is the province of the 
 courts; "jus dare," that of the Legislature. 
 
 A certain law is enacted authorizing municipal 
 bonds for public improvements. Certain persons buy 
 the bonds for full value. The public have the money. 
 Without considering the constitutional provision that 
 retrospective laws shall not be passed, the Legislature 
 cannot defeat the bonds by repealing the law authoriz- 
 ing their issue, such repeal being enacted after the 
 bonds were sold and before suit brought on them. The 
 Legislature may conclude that it made a mistake ; that 
 it misconstrued the Constitution and had no power to 
 act. After the Legislature pass an act, may the citi- 
 zen rely on it? May he act under it? It is a question 
 of power. That question of power does not de])end on 
 the degree to which it may be exercised. If the Legis- 
 lature pass a bad law they ought to repeal it. If the 
 Supreme Court of any State make a wrong decision on 
 the Constitution or statute laws of the State, the court 
 ought to overrule it and make a correct decision. Can 
 the honest citizen, aiming to be guided by the law and 
 follow it in ever^" respect, rely on the acts of the Legis- 
 lature and act under such statute laws as made by the 
 Legislature and inteipreted by the courts? May the 
 honest citizen rely on the decisions of the highest ap- 
 pellate court? May he act accordingly? 
 
 ' * The interpretation witliin the jurisdiction of one 
 State becomes a part of tJie law of that State, as much 
 so as if incorporated into the body of it by the Legisla- 
 ture. If, therefore, different interpretations are given
 
 350 Law of Local Taxation. [Chap. 14 
 
 in different States to a similar local law, that law in ef- 
 fect becomes by the interpretations, so far as it is a 
 rule for our action, a different law in one State from 
 what it is in the other." [Christy v. Pridgen, 4 Wall. 
 196, 203 ([uoted in Union Bank v. Kansas City Bank, 
 136 U. S. 223, 235.] 
 
 Then, the same statute in the same State, receiv- 
 ing at different times different varied and contradic- 
 tory constructions, is a different statute at one time 
 from what it is at another. The change is just the same 
 as if written in the body of the act by the Legislature. 
 The Constitution of Iowa at first, in fonn, authorized 
 municipal railroad aid bonds. The Supreme Court so 
 held. Then the Supreme Court held such bonds were 
 not only not authorized by the Constitution of Iowa, 
 but were in effect forbidden by that instrument. The 
 Iowa Constitution was a different Constitution at one 
 time from what it was at the other time. If Iowa and 
 Kansas had adopted the same Constitution, in the same 
 language, at the same time, then the Supreme Court of 
 Kansas may put one construction on her Constitution 
 and the Supreme Court of Iowa may put a different 
 construction on the Iowa Constitution. The Kansas 
 Constitution and the Iowa Constitution are certainly 
 laws. Whsii is Kansas statute law and what is Iowa 
 statute law (for constitutions are only statutes), are 
 questions for the Supreme Court of each State to deter- 
 mine. Some tribunal somewhere must determine fin- 
 ally and conclusively what is the statute or constitu- 
 tional law of each State. No one can allege that such 
 construction is erroneous. It is the peculiar province 
 of the Supreme Court of each State to determine what 
 is the statute law of such State. 
 
 The Kansas Constitution is different from the 
 Iowa Constitution. They are different laws. They be- 
 come different laws solely by the differing construe-
 
 Chap. 14] Why No Judicial Ixterference. 351 
 
 tions placed on them by the Siipi-eme Court of each 
 State. It was the Constitution that authorized the is- 
 sue of tlie bonds, not the decision of the courts. In 
 the other case, it was Constitution that ])rohibited the 
 issue of the bonds, not the decision of the courts. Iowa 
 had a different Constitution at one time from wliat she 
 had at another time. 
 
 I beg pardon for suggesting that the matters in 
 controversy in these cases were not thoroughly consid- 
 ered or adjudicated. We first have the Constitution of 
 Iowa, under which, by legislative enactment, municipal 
 railroad aid bonds are issued. Then we have a contro- 
 versy on the constitutional validity of the statute au- 
 thority to issue the bonds. The Supreme Court holds 
 that they have such authority. Cases follow and the 
 bonds are sustained. Then the state Supreme Court 
 changes its ruling. They now hold that the bonds are 
 without authority of law. ''That was not the law till 
 their honors spoke. ' ' No one can say the first decision 
 was erroneous. No one can say the second decision is 
 erroneous, although it is contradictory to the first. 
 
 Legislative acts (under our constitutions prohibit- 
 ing retrospective legislation) are always- prospective. 
 Our judicial decisions are always retrospective. Leg- 
 islative acts declare what the law shall be ; judicial de- 
 cisions declare what the law is and has been. The judg- 
 ment to express the matters really adjudicated should 
 be thus: Bonds were issued and sold on the market. 
 The bonds were issued and sold after the judicial decis- 
 ion that they were valid and issued by authority. That 
 decision becamie and was a part of the law and formed 
 part of the contract. If the bonds were not made and 
 bought on the faith of the decision as rendered, then 
 the purchaser has no claim to the protection of the 
 court. The court now holds that these bonds are with- 
 out authoritv. Such statute is a different law at the
 
 352 Law of Local Taxation. [Chap. 14 
 
 last decisions from what it was at the first decisions. 
 The last statute does or does not impair the obligation 
 of contracts. The Supreme Court of Iowa held that 
 the Constitution of Iowa did not authorize the bonds. 
 The last Constitution of Iowa impaired the obligation 
 of contracts made under the first Iowa Constitution. In 
 rendering the decision the court must have held that 
 the obligation of the contract was not impaired. 
 
 The twenty-fifth section of the judiciary act (U. S. 
 Statutes at Large, vol. I, p. 20, sec. 25, now Revised 
 Statutes of U. S. 1878 (p. 133, sec. 709) is thus: It 
 gives jurisdiction to the Supreme Court of the United 
 States to review judgments of the Suj^reme Courts of 
 the States in any case "where is drawn in question the 
 validity of the statute of the state [a state Constitution 
 is a statute] as being repugnant to the Constitution of 
 th United States and the decision is in favor of the 
 validity of the statute." 
 
 Here in this Iowa bond case, bonds were bought re- 
 lying on the statute and the Constitution of Iowa and 
 the decisions of the courts. The purchaser lost ; he was 
 deceived by both. In his business transactions the hon- 
 est citizen cannot rely either on the state Constitution 
 or the state statutes or the Iowa courts or the Consti- 
 tution of the United States or the Supreme Court of 
 the United States. Here we have the Iowa municipal 
 bonds issued by authority (in form at least) of the 
 Iowa statute under the Iowa Constitution. The Legis- 
 lature and the courts hold the bonds valid. That is the 
 statute. So the Supreme Court of Iowa holds on this 
 Iowa statute. Wlio shall say that decision is erroneus? 
 Then bonds are again issued after such decision and 
 sold on the market to a purchaser who relies on the 
 Constitution, the statute, and the judicial decisions. In 
 a suit on these bonds in the state court, the court over-
 
 Chap. 14] Why No Judicial Interference. 353 
 
 rules its former decisions and holds that the bonds are 
 issued witliout authority. This is not an erroneous de- 
 cision. Although one decision may be the opposite of 
 the other, yet each was the law at the time it was ren- 
 dered. What is the statute? Who can detennine this 
 but the couiif A void statute is no statute in legal ef- 
 fect. 
 
 At the time Mrs. Pennybacker made her deed to 
 Mr; Huntington the deed was valid. This was statute 
 law, so interpreted by the courts of Virginia and West 
 Virginia. Who could say that the Virginia statute did 
 not authorize the deed when the highest judicial trib- 
 unal in the State decided finally and conclusively that 
 the statute did authorize it? At the time the Hunting- 
 ton deed was made it was valid; at the trial it was void. 
 At the time the deed was made the statute authorized 
 it; at the time of the trial the statute prohibited it. The 
 Virginia statute declai-ing this deed valid was a differ- 
 ent statute from that declaring it void. The last stat- 
 ute impairs the obligation of the contract made under 
 the first statute. The deed was valid under the first 
 statute and void under the second. Mr. Huntington 
 lost his land under a deed, valid by statute when he 
 took it, and void by statute at the trial. The court 
 should have determined what was the statute when the 
 deed was made and what was the statute at the trial. 
 If the statutes varied, then the question to be consid- 
 ered would be, when was the contract made ? The last 
 decision is the one to be relied on. Tn this way the citi- 
 zen may rely on the United States and state Constitu- 
 tions, the Legislatures, and the United States and state 
 courts. He may accordingly buy lands or bonds or 
 make any other contracts. As it is, the honest citizen 
 cannot place any dependence or rely in any degree on 
 the Constitution of the United States or of the State, 
 
 23
 
 354 Law of Local Taxation. [Chap. 1-i 
 
 or the state statutes, or the decisions of her courts, or 
 even of the Supreme Court of the United States. 
 
 It is the peculiar province of the Supreme Court 
 of any State to declare what is the statute law of that 
 State and what is the Constitution of that State. And 
 when the decision is made, then that is or is not the 
 Constitution or statute law of such State. The decis- 
 ion interprets the Constitution and statute, the decis- 
 ion does not make the Constitution or statute. The 
 statute law in force when the bonds are sued on may 
 forbid what was authorized and done when the bonds 
 were made. 
 
 In Toivnship of Pine Grove v. Talcott, 19 Wall, at 
 677, the court say (quoted heretofore) : 
 
 ' ' The question before us belongs to the domain of 
 general jurisprudence. In this class of cases this court 
 is not bound by the judgments of the courts of the State 
 where the cases arise. It must hear and determine for 
 itself. Here commercial securities are involved." 
 
 It must not be forgotten that these "commercial 
 securities" are not claimed under any general common 
 law. This writer has yet to find a case anywhere re- 
 ported in the books holding that the general common 
 law authorized a local tax without the aid of any stat- 
 ute, or that by general common law without statutory 
 aid any municipal corporation could execute negotiable 
 municipal bonds. May the States legislate on the sub- 
 ject of "negotiable securities?" May the state Su- 
 preme Court interpret such statute laws so enacted on 
 the subject of "negotiable securities?" 
 
 If the Supreme Court of the United States are not 
 bound by the interpretation of the state statute or Con- 
 stitution made by the state Supreme Court, then they 
 are not bound by the state Constitution or the state 
 statute, for that interpretation is the statute and that 
 is the Constitution.
 
 Chap. 14J Why No Judicial Interference. 355 
 
 In Central Land Co. c. Laidley, 15'J U. !S. 103, if 
 the assignmeut of errors liad pointed out tlie error that 
 the statute at the time the deed was made was a differ- 
 ent statute from tiiat in force at the trial, then there 
 would have heen presented the (piestiun whether the 
 Virginia statute (as last interpreted which was cor- 
 rect) impaired the obligation of the deed (contract) 
 made under the former decision (which was correct) 
 construing the statute (whidi construction was cor- 
 rect). But the assignment of errors does not proceed 
 on this theory. In one point it assumes that the Vir- 
 ginia statute in force at the time the deed was made 
 authorized the deed. This was correct. Xo one could 
 deny it. The grantee bought the land, made his con- 
 tract and paid for the land when this was undisputed 
 law. At the trial the deed was without authority and 
 conveyed notliing. This was the statute law at the 
 trial. The decision so holding is not erroneous. The 
 first series of decisions on the Virginia deeds was cor- 
 rect ; they were not erroneous ; the second series of de- 
 cisions made by the Virginia Supreme Court were cor- 
 rect, but the assignment of errors says they were er- 
 roneous. The Virginia statute never changed. This 
 is not true in fact or law. The Virginia statute that 
 made this deed valid is a different statute from the Vir- 
 ginia statute which made this deed void. It was the 
 statute and not the decision which made the deed void. 
 
 Of course, all suits on municipal bonds in Iowa, as 
 well as elsewhere, are brought in I'^nited States courts, 
 where the courts hold that the nninicipal bonds are is- 
 sued by valid state constitutional authority, and not in 
 the state courts where the holding is that the municipal 
 bonds are without state constitutional authority. Such 
 bonds would not stay in Iowa. That they left the State 
 was a matter to be expected. Here are two sets of de- 
 cisions on the Iowa Constitution. The first series of de-
 
 356 Law of Local Taxation. [Chap. 14 
 
 cisions holds tliat the Towa Constitution authorizes mu- 
 nicipal bonds, and the second series that the Constitu- 
 tion does not give such authority. Both are correct; 
 neither is erroneous. The United States courts holds 
 the second series of Iowa decisions erroneous and the 
 first series without error. The State courts hold the 
 first series erroneous and the second series without er- 
 ror. 
 
 As far as the Constitution of the United States 
 is concerned, in its provision that no State shall pass a 
 law impairing the obligation of contracts, both courts 
 have fallen into error. If the Legislature make a bad 
 law they should repeal it, but not so as to effect contract 
 rights acquired under it. If the courts make an erron- 
 eous decision, they should correct it, but not so as to ef- 
 fect contract rights made under the law as interpreted 
 when the contract was made. United States courts now 
 hold that the state Constitution of Iowa authorizes 
 bonds, and the state courts that the bonds are prohibit- 
 ed. The United States courts decide and continue to 
 hold that the second series of state decisions are erron- 
 eous and will doubtless continue to so hold ad infinitum 
 even as to bonds issued after the second series of decis- 
 ions in the state courts had been made. United States 
 courts are not bound by the decisions of state courts on 
 state statutes and state constitutions where negotiable 
 securities are concerned, and on negotiable securities it 
 is to be inferred that state statutes and state constitu- 
 tions will be disregarded. The negotiable bond market 
 dominates state Supreme Court decisions, state statutes 
 and state constitutions. It accomplishes their complete 
 overthrow. 
 
 Ever^'' state must make its own constitution and 
 statute laws and there must be some tribunal some- 
 where — some judicial tribunal where such constitution 
 and statute laws are authoritatively interpreted and
 
 Chap. 14] Why No Judicial Interference. 357 
 
 deteraiined. If tlio Sui)reme Court of the United 
 States may disregard the judginents and decisions of 
 the higliest judicial tribunal of tlie states affecting the 
 interpretation and construction of state constitutions 
 and state statutes, then they may disregard the state 
 constitutions and state statutes. There can be no mid- 
 dle ground. The Sui)reme Court of Michigan deter- 
 mined that municipal bonds were prohibited by her 
 constitution. Notwithstanding such decision municipal 
 bonds were issued and sold on the market. 
 
 If Michigan should adopt a constitution, prohib- 
 iting in toto the issue of municipal bonds, would that 
 express constitutional prohibition meet with any other 
 or different fate from that of her old constitution and 
 the judicial construction put on that constitution by 
 the highest judicial tribunal in the State? 
 
 The special tax-bill is the superior of the munici- 
 pal bond. The municipal bond is valid only in the 
 hands of the purchaser for value before maturity witli- 
 out notice, but the special tax-bill is valid in the hands 
 of the original wrongdoer even if injurious, ruinous 
 consequences follow the prohibited acts for which the 
 tax-bills are issued. AH public improvements are made 
 under contracts— just as much contracts as municipal 
 bonds. These contracts are under the protection of 
 the Constitution of the United States. Our courts can 
 not hold them invalid even if they damage or destroy 
 property. Quo vadimusf 
 
 The question is discussed at some length by the Su- 
 preme Court of Missouri (October tenn, 1905), in the 
 case of SedaUa to the use of The Sedalia National Bank 
 V. Donahue, 190 Mo. 407, et seq. The bank bought cer- 
 tain tax-bills, relying on certain appellate court decis- 
 ions as to the city's ])ower to issue them. The bank in 
 making the purchase relied on certain appellate court 
 decisions, an appellate court which has done much to
 
 358 Law of Local Taxation. [Chap. 14 
 
 confine municipalities to the enforcement of the statute 
 laws of Missouri. The bank in making the purchase 
 relied on court decisions and was deceived, and the Su- 
 preme Court affirmed the deception. 
 
 The court holds, as the Virginia court and the Su- 
 preme Court of the United States holds, that the same 
 statute which authorizes the tax-bills prohibits them. 
 The court refer to The Central Land Company v. Laid- 
 ley, 159 U. S. 103. 
 
 The Virginia statute made the Huntington deed 
 valid when Mr. Huntington paid for the land and took 
 the deed for it, relying on the statute and the decisions 
 of the courts of Virginia. The Virginia statute prohib- 
 ited that deed after it was made. The same statute that 
 made the Huntington deed valid, prohibited it and 
 made it void. And yet the Virginia statute did not im- 
 pair the obligation of this contract (Huntington's 
 warranty deed) ! 
 
 This last Missouri decision teaches one important 
 lesson to all people who are in business. You cannot 
 safely rely on judicial decisions. The courts are not 
 to be trusted. The old maxim, "Interest Reipuhlicae 
 nt sit finis Uti/um," has been changed to "Interest Rei- 
 puhlicae ut sit finis litium non," putting the most im- 
 portant word, ''non," last, so that the memory may lin- 
 ger long on that which is most important. 
 
 Has the blind goddess of Justice become a street- 
 walking strumpet?
 
 CHAPTER 15. 
 
 CONCLUSION. 
 
 In conclusion the writer would ask the property- 
 owner, the reader, the citizen, to reflect on the matters 
 referred to in this book. The accumulations of a life- 
 time are at stake. The home of yourself, your fam- 
 ily and children are at stake. That home may be taxed 
 one hundred per cent of its value and sold to pay the 
 cost of doing it a damage prohibited by the Constitu- 
 tion, and the courts can afford you no relief. If the 
 property-owner make resistance in the courts or else- 
 where, the modem law puts him in the disagreeable 
 position of one who has received a large benefit from 
 ]niblic work, and in refusing to pay for it he is despic- 
 able, contemptible and vile, to be shunned by all good 
 (self-styled progressive) citizens. It is the stop-thief 
 cry of the centuries. It is part and parcel of the divine 
 right of kings. ''The king can do no wrong." The 
 common council cannot by their acts damage private 
 property for public use. Their determination that their 
 public improvements benefit the citizen cannot he dis- 
 puted, even when the proposed benefit is a damage ten 
 times the amount of the cost. The Constitution as ju- 
 dicially interpreted declares the incendiary's torch a 
 benefit. 
 
 The legislative power is always aggressive. It is 
 the power which threatens to ''Draw within its impet- 
 uous vortex all other powers of the government." Here 
 our common councils have absolutely unlimited powers 
 over the real property of the citizen. If they may un- 
 der laws passed by constitutional authority, have and 
 exercise this unlimited power over real property, they 
 
 (359)
 
 360 L.\w OF Local Taxation. [Chap. 15 
 
 may by legislative enactment have and exercise this 
 nulimited power over personal property, and all other 
 property unfortunately subjected to its power. 
 
 By an act of the Missouri Legislature, approved 
 April 14, 1905 (Session Acts or Laws of Missouri 1905, 
 pages 282-291), land may be taxed for a road to the 
 extent of $100 per acre. This is merely one step fur- 
 ther in the wrong direction. 
 
 There is absolutely no limit to the amount of the 
 tax. 
 
 A two hundred per cent local tax may be levied on 
 the full value of land and a two hundred per cent tax 
 on the full value of the benefit conferred without any 
 violation of the fourteenth amendment to the Constitu- 
 tion of the United States. That amendment was not 
 designed to secure such "delusive exactness." 
 [Louisville and Nashville R. R. Co. v. Barber Asphalt 
 Paving Co. (A. D. 1905), 197 U. S. 430, and cases cited 
 on page 434.] The Kentucky statute referred to pro- 
 vided that ' ' The courts in which suits may be pending 
 shall make all corrections, rules and orders to do jus- 
 tice to all parties concerned." But the courts hold 
 that they cannot make corrections of legislative enact- 
 ments. 
 
 Some have said that the courts and judges are cor- 
 nipt and \acious. I do not believe it. This assertion 
 is a serious error. Courts and judges are and have 
 been sincere and honest, and in consequence thereof 
 the damage has been greater. 
 
 Sir William Blackstone has told us that the ob- 
 jects for the consideration of the laws of England are 
 two fold : first, persons ; second, things. The Supreme 
 Court of the United States, at December term, A. D. 
 1856, in case of Dred Scott v. Sandford, 19 Howard 
 393 to 633, decided that a black person was not a per- 
 son at all, but a mere thing. The black man had na
 
 Chap. 15] Conclusion, 3()1 
 
 more capacity to sue than a horse or a sawlog or other 
 inanimate object. This decision gave to any white man 
 the right to oal] tlie roll of his slaves at the foot of Bun- 
 ker Hill monument or in Illinois, notwithstanding the 
 Constitution of Massachusetts and of Illinois had de- 
 clared that black persons were persons and not things, 
 and that slavery did not exist and should not exist. 
 In 1834 Dred Scott, a Missouri slave, was taken to Illi- 
 nois (he did not escape there) and remained there for 
 two years. He was a slave notwithstanding the Con- 
 stitution of Illinois prohibited slavery. "We have the 
 exact counterpart in Missouri and other States. Our 
 Constitution prohibits damagmg private property for 
 public use without just compensation. And yet nearly 
 every one of these States authorizes a local tax on dam- 
 aged property (the damaging being expressly prohib- 
 ited by the Constitution) to ])ay the cost of the forbid- 
 den damage. Notwithstanding this act (damaging) is 
 prohibited, still courts imply a power to tax the dam- 
 aged property for doing the prohibited act. Slavery 
 existed in Illinois notwithstanding her Constitution 
 prohibited it. Property can be damaged in the States 
 notwithstanding the state Constitutions prohibit it. 
 And the courts enforce the law of slavery and the law 
 of valdalism and robl^eiy alike, notwithstanding state 
 constitutional lu'ohibitions, however absolute such con- 
 stitutional restrictions may be. 
 
 State legislatures and state courts seem to have 
 had little difficulty in breaking through the cobweb 
 chains of paper constitutions. Nine years after the de- 
 cision was rendered in Dred Scott v. Sandford, the 
 thirteenth amendment to the Constitution of the United 
 States abolished slave r}- (in fonu at least) in all the 
 United States. The fourteenth amendment followed 
 soon. 
 
 Our courts decided at an earlv dav that legisla-
 
 362 Law of Local Taxation. [Chap. 15 
 
 tive divorces were unconstitutioual. Such divorces im- 
 paired the obligation of contracts ; they were retrospec- 
 tive in their operation and such legislative divorces 
 were an exercise of judicial power by the Legislature 
 in conflict with that provision of the Missouri Consti- 
 tution that the powers of the government were divided 
 into three distinct departments, eacli of which should 
 be confided to a separate magistracy, and no person 
 charged with the exercise of powers properly belonging 
 to one department should exercise any powers properly 
 belonging to either of the other departments, with very 
 limited exceptions, and the exceptions strengthen in 
 cases not excepted. ^Ye have seen the repeated at- 
 tempts to overthrow tlie Constitution by repeated leg- 
 islative divorces, the state Legislature claiming the un- 
 limited powers of the English Parliament notwith- 
 standing our constitutional restrictions and our judic- 
 ial decisions. The Missouri Legislature for a long 
 series of years defied the Constitution and the courts 
 until the Missouri Constitution of 1865 in terms pro- 
 hibited divorces by legislative act. It must be now left 
 to the courts to be decided on notice and hearing and 
 an opportunity to be heard. 
 
 The reader cannot fail to notice the long contin- 
 ued and persistent effort on the part of state legisla- 
 tures and state courts to overthrow state constitutions 
 and restrictions and substitute the English Constitu- 
 tion and the unlimited powers of the English Parlia- 
 ment. 
 
 On special tax-bills and municipal bonds no change 
 can now be made in state Supreme Court decisions. 
 The Constitution of the United States prevents any 
 change of this state statute and this state Constitution 
 by legislative act or judicial decision, or even an 
 amendment of the state Constitution as to bonds or tax- 
 bills in force under the present state constitutions and
 
 Chap. 15] Conclusion. 363 
 
 the present statutes. This prohibition is accomplished 
 under that clause of the Constitution of the United 
 States which i)rohibits the States from passing laws 
 impairing the obligation of contracts. Local taxes 
 were held unconstitutional if tlie work for which the 
 taxes were levied was a general benefit only to the 
 property taxed ; now the tax is valid if that work done 
 for which the tax is levied be a damage to the lot to 
 the extent of ten times (or more) the cost of the work. 
 The tax is valid to the extent of one hundred per cent 
 of the damaged property, or to the extent of the whole 
 value of the property when it is no benefit whatever 
 to the property taxed. The state courts in all the States 
 now hold such taxes valid. They cannot now hold them 
 void and thus impair the obligation of the contractor's 
 contract to make the improvement. There is just as 
 much power to make the tax-bill as there was to make 
 the municipal bond. Even in the hands of the innocent 
 purchaser for value without notice, before maturity, 
 the municipal bond is comparatively harmless. The 
 public pay a general tax and get nothing for it, but in 
 case of the special tax-bill the taxpayer must in addi- 
 tion suffer the loss in having his property damaged. 
 He may be compelled to pay for the vandalism to the 
 extent of the entire value of his land. It is no answer 
 to say that the city or town corporation may be sued 
 for the tort and ''just compensation" for damagingmay 
 be recovered. The owner may bring replevin against the 
 horse thief for the stolen horse, but he is not bound to 
 pay the thief's costs and expenses. But the lotowner 
 is bound to pay the lot thief his costs and expenses. 
 The state Constitution is the lot thief's only refuge. 
 The contractor for public work under his contract has 
 a right to the tax to the extent of the whole value of 
 the property, together with the whole value of the im- 
 provements thereon, even if the work occasion the
 
 364: Laav of Local Taxation. [Chap. 15 
 
 property-owner a damage. The state courts in all the 
 States now hold such special taxes valid. They cannot 
 now hold them invalid. To do so would give us dif- 
 ferent charters, different laws, different constitutions, 
 from those in existence at the time the public improve- 
 ment contracts were made. We have court-made con- 
 stitutions and court-made statutes. But the courts (no 
 more than the legislatures) cannot change the statutes 
 (by giving them a different interpretation and con- 
 stiTiction) so as to affect precedent contracts. The 
 courts (no more than the people themselves acting un- 
 der the forms of law) cannot now change the state Con- 
 stitution so as to affect contracts made under the Con- 
 stitution. The courts cannot make that cbange by giv- 
 ing the Constitution a different construction and inter- 
 pretation. The state Constitution is a law. To say 
 what the law is in a given case is of the very essence 
 of judicial duty. The Constitution is a different Con- 
 stitution at one time under one construction and inter- 
 pretation from what that Constitution is at another 
 time under another and different construction and in- 
 terpretation. 
 
 The evil consequences are alike in both cases. The 
 property-owner must pay the special tax without an 
 equivalent in the form of the special, peculiar, excep- 
 tive benefit or lose his property. If the property-own- 
 er be successful in the defeat of the tax in court, then 
 the contractor loses his time, labor and materials. In 
 either case the public reaps the profit in getting the 
 street made or improved or other public improvement. 
 The city gets the street for nothing except that in this 
 robbery of the property-owner or contractor it pays the 
 salarv' of its own employees— in the robbery it pays off 
 its hired hands. 
 
 Either the property-owner is robbed of his real es- 
 tate or the contractor of his labor and materia]. The
 
 Chap. 15] Conclusion. 365 
 
 city gets the pul)lic improvement without cost or price. 
 If, under such circumstances, puljlic improvements are 
 not made, the failure cannot ])e attributed to a lack of 
 power or authority in the city government. The real 
 culprit is easily discovered. It is the king, tlve public 
 (the city represents the public). It is "the king's high- 
 way. The king improves the street." The king au- 
 thorizes his sen^ant to take the first real estate he finds, 
 that adjoining his work, and sell it to pay this servant 
 for improving "the king's highway." 
 
 ''The King can do no wrong." It is the old doc- 
 trine of the "divine right of kings." The real estate 
 owner may be ruined by an enonnous tax for a work 
 which occasions the ruin of his property; the property- 
 owner has no recourse. The contractor may find that 
 the abutting real estate is not of sufficient value to pay 
 the tax against it. The contractor may thus lose part 
 of his just dues and the landowner all of his land, but 
 the public reaps the benefit and pays nothing. A local 
 tax without the landowner's consent in writing should 
 never be allowed to be levied to an amount exceeding 
 the special, peculiar, exceptive benefits added to the 
 property taxed by reason of the proposed improve- 
 ment. 'V\niether a local improvement is a peculiar, 
 special, exceptive benefit to abutting property and how 
 much, should be a judicial question for the courts with 
 the requirement in the law that the public authorities 
 must prove the fact and amount of benefit. The ques- 
 tion of the value of the public im]irovement to the pulv 
 lie (when it is proposed to be done by local tiix) should 
 be a judicial question, and if the public improvement is 
 not worth its cost its constmction should not be al- 
 lowed without the consent in writing of the abutting 
 landowners. 
 
 The Constitution should be restored to what it was 
 prior to its judicial overthrow. This should be "a tax
 
 366 Law of Local Taxation. [Chap. 15 
 
 on benefits." And the tax should not exceed the ben- 
 efits, special and peculiar, to the property taxed. Local 
 taxation without special benefits was at one time con- 
 fiscation, forbidden by our constitutions. No legisla- 
 tive power on earth should be allowed, without the 
 owner's consent in writing, to absorb the whole value 
 of a person's property in the interest of the public, 
 without rendering a full equivalent. The legislative 
 power that takes or taxes should not be permitted to 
 determine values or benefits or damages. 
 
 If, in doing a public work (as for instance grad- 
 ing a street as in Keith v. Bingham) the legislative 
 power may determine that the work is a benefit to the 
 individual and tax accordingly, then what is a benefit 
 to the individual cannot be a damage to him. There 
 can be no just compensation for damaging private 
 property for public use when that property is benefited, 
 as determined by the Legislature in the exercise of the 
 power of taxation. There is nothing left for the court 
 and commissioners or court and jury to pass on. There 
 is nothing left for the Constitution to operate on. If 
 the legislative power may take one dollar above the 
 special benefit, that power may take the whole prop- 
 erty, the entire fortune of the owner. 
 
 The plain intent of the Constitution is, that "the 
 just compensation" shall be paid in advance, includ- 
 ing ' ' just compensation ' ' for taking or damaging. The 
 property-owner must be paid in advance. This plain 
 constitutional right is openly violated without any 
 means of redress. 
 
 In Keith v. Bingham^ 100 Mo. 300, et seq., it was 
 admitted that the property was damaged by grading 
 May street. There was no just compensation made 
 or paid to any one. Payment was not made in advance 
 as required by the Constitution.
 
 Chap. 15] Conclusion. 367 
 
 It was not necessary to comply with the Constitu- 
 tion. 
 
 In McQuiddij v. Smith, G7 Mo. App. 205 (A. D. 
 1896), the court held, page 208: 
 
 "It was not intended by the provisions of the char- 
 ter of 1889 (Kansas City) to make the assessment of 
 damages and benefits for grading a street a condition 
 precedent to the authority of the city to order the im- 
 provement and assess the cost thereof to the abutting 
 property. The purpose of article 8 was to prepare a 
 way by which the city could have settled ))eforehand 
 the damages to be incurred by the proposed improve- 
 ment, so that it might be advised in advance whether 
 or not it was proper and for the public go^ d to prose- 
 cute the work." 
 
 The Constitution requires payment of just com- 
 pensation in advance. The Kansas City charter gives 
 the city government the option to comply with the Con- 
 stitution and pay in advance or do the forbidden work 
 in violation of the Constitution and let the landowner 
 sue. The court merely interpreted the Kansas City 
 Charter. Whether it is constitutional to take property 
 for public use without just compensation in advance, 
 or damage property for public use without payment in 
 advance, is not discussed. The Court of Appeals had 
 no jurisdiction over that or any other constitutional 
 question. 
 
 If the act of the city was rightful according to the 
 Constitution, how could :\rrs. Smith get judgment 
 against Kansas City for $2,750? If it was wi'ongful 
 how could the city compel Mrs. Smith to pay for it ? 
 The evident meaning of the Constitution was to re- 
 ([uire ]iayment in advance. The ]niblic must ascertain 
 and pay just compensation in advance. In the event 
 that any public authority should either take or damage 
 private property for public use without payment in
 
 368 Law of Local, Taxation. [Chap. 5 
 
 advance, then the landowner should be entitled under 
 the Constitution to treble damages. I know this may 
 to some appear harsh, but if the citizen have a constitu- 
 tional right, it ought to be secured to him by such sanc- 
 tions as will cause that right to be respected. Private 
 property should not be taken or damaged for public use 
 without just comi^ensation paid in advance, and in the 
 event of taking or damaging without pa^aiient in ad- 
 vance, then the person or corporation that takes or 
 damages should be liable to treble damages. Ascer- 
 tain just compensation by jury, and then require the 
 court to enter judgment for three times the amount. Re- 
 store to the citizen the right to hold property honestly 
 acquired by him. That constitutional right consists 
 now entirely of sound. 
 
 The history of railroad and road construction is 
 familiar to the peojDle of Missouri and other States. 
 Greneral taxation in Missouri and other states is lim- 
 ited by constitutional restrictions. It is so limited as 
 not to exceed a certain per cent of the assessed value, 
 being five per cent in Missouri. A tax in excess of five 
 per cent on assessed values is not to be tolerated— a 
 debt in excess of five per cent of the taxable property 
 is not to be tolerated (for a debt must be paid by a tax). 
 The Constitution prohibits any tax or debt in excess 
 of five per cent of the assessed values. Railroads and 
 roads may double or treble or quadruple the value of 
 property, yet taxation — general, taxation— is prohib- 
 ited above five per cent. 
 
 The state Legislatures have been prohibited from 
 building railroads and roads, or lending state aid on 
 that account or making bonds. The legislative judg- 
 ment was not to be trusted. Counties, cities, towns, 
 villages and unorganized strips of land issued, under 
 legislative enactments, municipal bonds for roads and 
 railroads. The official judgment of these public offi-
 
 Chap. 15J Law of Local Taxation. 369 
 
 cers was mistrusted and these authorities were limited 
 by tlie retiuireuieut of a ijopular vote. This proved iu- 
 eiTectual, and the power was taken away entirely. 
 These restrictions and prohibitions were made because, 
 under the best .indf^nent of state lep^islatures, county 
 courts, city, town and village governments, we had ten- 
 cent railroads for dollar taxes, or no railroad or road 
 at all. 
 
 But in all the long continued municijjal bond liti- 
 gation in all the states we fail to meet a case where 
 the property-owner had to pay a tax to damage his 
 own property. Now, in Missouri a municipal bond 
 debt exceeding five per cent of the assessed value of 
 the property cannot be created under the state Con- 
 stitution even with the consent of every voter, notwith- 
 standing the fact that the work for which the debt may 
 be incurred shall double and treble the values (the 
 sale values) of all the lands and property in the mu- 
 nicipality. A like limitation should apply to local tax- 
 ation. No difference how great the benefit, the tax or 
 debt should not exceed five pter cent of assessed values. 
 The debt runs for twenty years. 
 
 Real estate in our cities, towns and villages has 
 increased in sale value from one dollar and twenty-five 
 cents i)er acre to five and even ten thousand dollars per 
 front foot, but that increase in sale value was not due 
 to tax-bills. Even if the benefit be one hundred per 
 cent or two hundred per cent or three hundred per 
 cent, yet the tax cannot exceed five per cent. This is 
 the constitutional rule for general taxation. Be lib- 
 eral and make your constitutional rule provide that the 
 special tax shall not exceed twenty-five per cent of the 
 assessed value. No difference how great in amount the 
 special l)enefits may be, fix the rule at twenty-five per 
 cent, five times the amount allowed by the Constitu- 
 tion in general taxation. Our counties, cities, towns 
 
 24
 
 370 L.4.W OF Local Taxation. [Cliap. 15 
 
 and villages should cease to be "get rich quick" corpo- 
 rations. 
 
 Five per cent of the assessed value of property is 
 the utmost debt-making power. This is "the ultima 
 thule" beyond which we cannot go. When work has 
 been done on a street without the consent, in writing, 
 of the landowner, and that work does not damage 
 abutting property and does not benefit it, there should 
 be no special tax against it. State constitutions now 
 provide certain restrictions in the interest of private 
 property. These restrictions are designed for the 
 special protection of the property-owners in enabling 
 them to hold their property. Our constitutions pro- 
 vide (by imiDlication in some cases and in express terms 
 in others) that private property shall not be taken for 
 private use except in the limited number of cases of 
 private ways of necessity, and then compensation must 
 be rendered. In 1856 this was an implication in the 
 Missouri Constitution {Wells v. Weston, 22 Mo. 384). 
 Xow in Missouri it is an express prohibition. Under 
 present constitutional law, wherever there is a consti- 
 tutional restriction or prohibition in favor of the per- 
 son or his property, there the State may nevertheless 
 do the jDrohibited act, or authorize any of its subdivis- 
 ions, its cities, towns and villages, to do the prohibited 
 act ; and acting under such authority they may do the 
 prohibited act and then levy a special tax against the 
 very property damaged which was designed to be pro- 
 tected by the prohibition, and the tax for that act is a 
 valid tax, notwithstanding the act was prohibited. The 
 Constitution must go further and in terms prohibit 
 both the act and all power to tax the injured person or 
 property on account of the prohibited act. 
 
 Dred Scott was taken by his master to Illinois as a 
 slave and held there as a slave for two years, and he 
 still remained a slave notwithstanding the Constitution
 
 Chap. 15] Conclusion. 371 
 
 of Illinois prohibited slaver>\ Slavery did exist iu 
 Illinois notwithstanding her Constitution prohibited it. 
 The Southern slaveowner had the right to take his 
 slaves to Massachusetts and there use them as he used 
 any other proj>erty — he had the right to call the roll 
 of his slaves at the foot of Bunker Hill monument, 
 notwithstanding the Constitution of Massachusetts 
 prohibited slavery. 
 
 Prior to 18(30 this tax, this local tax, could in no 
 case be laid without this special, peculiar, exceptive 
 benefit. To so levy this local tax without the special 
 benefit was confiscation which was merely one of the 
 ways of taking the citizen's property for public use, 
 prohibited by the Constitution. 
 
 One case decided in the Supreme Court of Mis- 
 souri in June. 19<)6 {State ex inf. Hadley v. Peoples 
 United States BanJx\ Spemer Receiver, Appellant) 
 seems to indicate that this inroad on the constitutional 
 rights of the citizen may have a limit. In that case the 
 attorney-general had proceeded against the Peoples 
 United States Bank under local statutes, a receiver 
 had been appointed, he was duly qualified, gave bond 
 and took possession of the assets of the bank and had 
 paid a large amount of the debts of the bank ; then the 
 court determined it had no jurisdiction and entered 
 the appropriate judgment and the receiver was di- 
 rected to deliver all the property and assets to the 
 bank, and make and state his account. He did so and 
 the court approved his accounts. He asked an allow- 
 ance of $12,100 for his services. That was refused. He 
 paid the money into court and filed his motion for al- 
 lowance of fees for his services. The court allowed 
 $2,500 for seven days work, $500 for attorney's fees 
 and $150 for additional attorneys fees, total $.3,150 
 fees. The amount was allowed, but as costs generally, 
 and the receiver insisted that the amount should be
 
 •^70 
 
 Law of Local Taxation. [Chap. 15 
 
 paid out of the funds in court and not as costs gener- 
 ally. The receiver claimed that the order was erron- 
 eous on two grounds, first, the amount was too small, 
 second, the charge should have been against the funds 
 in coui-t. These funds were benefited by the receiver's 
 acts. Debts were paid and such payment was affirmed 
 by the bank. More than two and one-half millions had 
 passed through the receiver's hands. He had given a 
 large bond at large expense. The court, at page 613, 
 say: 
 
 "We are referred to authorities which hold that as 
 a general rule the receiver is entitled to his pay out of 
 the funds in his hand, regardless of what the final judg- 
 ment on the merits of the case may be, and we are pre- 
 pared to accept that as a general rule, with the quali- 
 fications we have hereinabove mentioned. But we have 
 not been pointed to any authority which holds that, 
 where there was absolutely no justification in the act 
 aj^pointing a receiver, and the act was in its nature to 
 the injury of tlie defendant, he should nevertheless pay 
 for the injury that was done him, and if there are such 
 authorities we do not care to see them." 
 
 There can certainly be no justification (except, 
 perhaps, the decisions of all our state supreme courts) 
 for paying the costs of damaging private jDroperty for 
 public use out of the property damaged. But here it 
 seems the court refused to pay the cost (of damaging 
 these bank funds) out of the damaged bank funds. The 
 bank was not bound to pay for damaging its property, 
 its credit, its good name, by having a lien fastened on 
 its property. 
 
 Although millions were not involved in Mrs. 
 Smith's case here in Kansas City, that lady might ap- 
 propriately ask the court why she was compelled to pay 
 $300 (67 Mo. App. 205) for damaging her property to 
 the extent of $2,750 (128 Mo. 23). Was it because a
 
 Cliap. 15J Conclusion. 37;> 
 
 state Constitution is of less consequence than the gen- 
 eral common or statute law? 
 
 Under modern state constitutions, individual 
 rights were supposed to have been ])rotected. No man's 
 property shall be taken or damaged for public use with- 
 out just compensation ascertained by court and jury 
 or court and commissioners in advance and paid in ad- 
 vance. But now state constitutions dispense with the 
 special, peculiar, exceptive benefit— they dispense with 
 the general benefit and with arch fiendish boldness acts 
 of taking and acts of damaging are done and the 
 wronged citizen is taxed with the cost of taking or dam- 
 aging his own property, notwithstanding such acts 
 were prohibited by the Constitution. If God's govern- 
 ment be just, state constitutions with such moral lep- 
 rosy in them ought not and cannot long endure. Our 
 constitutions cannot reverse the judgments and decrees 
 of the Almighty. There may be apparent prosperity 
 but it is not real. Our people in our cities, towns and 
 villages are walking through the graveyard, whistling 
 to keep their courage up. That which is taken to be 
 healthful life and vigor is not real ; it is the death rat- 
 tle. It is an invitation to a Belshazzar's feast where 
 sooner or later will appear the fatal handwriting on the 
 wall. 
 
 Eestore the Constitution. Make it possible for the 
 honest citizen to hold and use his property in spite of 
 anything that may be done by the Empsons and Dud- 
 leys, the Dantons, the Robespierres and Marats of 
 modern times.
 
 TABLE OF CASES.
 
 TABLE OF CASES. 
 
 A. 
 
 Allen V. Krennlng, 23 Mo. App. 561 74. 75, 76, 83 
 
 Allen V. Inhabitants of Joy, 60 Maine 127, 13. 15 
 
 Anderson v. Santa Ana, 116 U. S. 356, 361 346 
 
 Armstrong v. St. Louis, 69 Mo. 309 77. 222 
 
 B. 
 
 Balrd V. Kansas City, 98 Mo. 215 130. 167 
 
 Bank v. Buckingham, 5 Howard 317 344 
 
 Baltimore & Penn. R. R. Co. v. Ohio R. R. Co., 60 Maryland 263 160 
 
 Bank of Chicago Union v. Kansas City Bank, 136 U. S. 223 317 
 
 Barber Asphalt Paving Company v. French, 158 Mo. 534 ... .269, 285 
 
 Bauman v. Ross, 167 U. S. 548 21 
 
 Bay City v. State Treasurer, 23 Mich. 499 319, 320 
 
 Bergman v. Backer, 157 U. S. 655 347 
 
 Boyd V. U. S., 116 U. S. 616 77 
 
 Brown v. Maryland. 12 Wheaton 439 179 
 
 Bryson v. Rosanna Campbell. 12 Mo. 498 331 
 
 Bryson v. Bryson. 17 Mo. 590 332 
 
 Bryson by next friend v. Bryson, 17 Mo. 590 333 
 
 C. 
 
 Cameron v. Stephenson, 69 Mo. 372 8. 15. 65. 172 
 
 Central Land Co. v. Laidley, 159 U. S. 103 341. 355. 358 
 
 Chaoney v. Hoover, 9 Ben Monroe 330 15 
 
 Charles River Bridge v. Warren Bridge, 11 Pet. 420 160 
 
 Chicago Ins. Co. v. Needles, 113 U. S. 574 345 
 
 Chicago Union Bank v. Kansas City Bank, 136 U. S. 223 317 
 
 ChrisUe v. Pridgen. 4 Wall. 196 315, 350 
 
 City of Kansas to use of Coates v. Ridenour, 84 Mo. 253 
 
 74, 244, 276, 311 
 
 City of Louisiana v. Miller, 66 Mo. 467 58 
 
 City of Pleasant Hill v. Dasher, 120 Mo. 675 58. 65 
 
 City of St. Charles v. Nolle, 51 Mo. 122 (see St. Charles v. Nolle) 
 
 City of St. Joseph v Anthony. 30 Mo. 537 48. 62 
 
 City of St. .loseph to use v. Owen, 110 Mo. 445 218 
 
 City of St. Louis v. Davidson, 102 Mo. 149 204 
 
 City of St. Louis to use of Seibert v. Allen, 53 Mo. 44 
 
 33. 53. 58. 59, 60, 63, 65. 69. 107, 135. 137. 157. 172, 180 
 
 (377)
 
 378 Table of Cases. 
 
 City of St. Louis v. Clemmons 36 Mo. 467 54, 298 
 
 City of St. Louis v. Coons, 37 Mo. 44 54, 298 
 
 City of St. Louis v. Peter Gurno, 12 Mo. 414 . .170, 215, 238, 277, 301 
 
 City of St. Louis v. Rankin, 96 Mo. 497 218 
 
 City of St. Louis v. Hill, 116 Mo. 527 66, 76, 241, 278 
 
 Cole V. LaGrange, 113 U. S. 1 13, 15, 187, 242 
 
 Commonwealth v. Pittsburg and Connellsville R. R. Co.. 58 Pa. 
 
 St. 26 160 
 
 Connelly v. Union Sewer Pipe Co., 184 U. S. 540 140 
 
 Corrigan v. Gage, 68 Mo. 541 311 
 
 County Lane v. Oregon, 7 Wall. 71 41 
 
 Cowenhoven v. City of Brooklyn, 38 Barb. 9 222 
 
 Craig V. Missouri, 4 Peters 410 196, 198, 199 
 
 Creamer v. Bates, 49 Mo. 523 311 
 
 Creighton v. Manson. 27 Cal. 627 69 
 
 D. 
 
 Davidson v. New Orleans, 96 U. S. 97 270 
 
 Douglass V. Pike County, 101 U. S. 677, 686 346 
 
 Dred Scott v. Sanford, 19 Howard 383 73, 290, 360 
 
 E. 
 
 Egyptian Levee Company v. Hardin, 27 Mo. 495 45, 48, 107, 270 
 
 Estes v. Owen, 90 Mo. 113 218 
 
 F. 
 
 Farrar v. St. Louis, 80 Mo. 379 75, 109, 218 
 
 Fletcher v. Peck, 6 Cranch 87 14, 167 
 
 Ford V. Kansas City, 181 Mo. 137 295 
 
 Fowler v. St. Joseph, 37 Mo. 228 54, 298 
 
 G. 
 
 Garrett v. St. Louis, 25 Mo. 512 27, 28, 37, 39, 48, 50, 103, 110, 218 
 
 Gelpcke v. DuBuque, 1 Wall. 175 339, 346 
 
 Gentry et ux. State ex rel. v. Frey, 4 Mo. 120 (see State ex rel. 
 
 v. Frey) 
 Graves, Mansker et al. v. The State, 1 Mo. 452 197 
 
 H. 
 
 Hagar v. Reclamation District, 111 U. S. 701 43 
 
 Halpin v. Campbell, 71 Mo. 493 311 
 
 Havemeyer v. Iowa County, 3 Wall. 294 340 
 
 Head v. Amoskeag Co., 113 U. S. 26 347 
 
 Hilton V. St. Louis, 99 Mo. 199 185 
 
 Higgins V. Ausmus, 77 Mo. 351 56. 61, 65
 
 Tarle of Cases. 379 
 
 Householder v. Kansas City, 83 Mo. 488 173, 191, 191 
 
 Hunt V. Knickerbocker, 5 Johns 327 201 
 
 I. 
 Isom V. Mississippi Central R. R. Co., 36 Miss. 300 160 
 
 J. 
 James River and Kanawha Co. v. Turner, 9 Leigh. 313 . 22, 28, 133 
 
 K. 
 
 Kansas City ex rel. Diamond Brick Co. v. Surety Co., 196 Mo. 
 
 281 203,205 
 
 Kansas City v. Ward, 134 Mo. 172 263 
 
 Keating v. Skiles, 72 Mo. 97 vl 
 
 Keating v. Kansas City, 84 Mo. 415 vl 
 
 Keith V. Bingham, 100 Mo. 300, vi, vii, 169, 178, 182, 196, 214, 288, 366 
 
 Kilbourn v. Thompson, 103 U. S. 168 309 
 
 Knox V. Exchange Bank, 12 Wall. 379 345 
 
 L. 
 
 Lane County v, Oregon, 7 Wall 71 ♦! 
 
 Lawler v. Walker, 14 Howard 149 344' 
 
 Lehigh Water Co. v. Eastern. 121 U. S. 388 345 
 
 Loan Association v. Topeka, 20 Wall. 655 9, 15, 36. 182, 187 
 
 Lockwood V. St. Louis. 24 Mo. 20 ..44, 69, 97, 100, 102, 110. 259, 
 
 293, 298 
 Louisiana and Frankford Plankroad Co. v. Pickett, 25 Mo. 535 
 
 33, 103, 104, 106 
 
 Louisiana v. Pillsbury. 105 U. S. 278 345 
 
 Louisville and Nashville R. R. Co. v. Barber Asphalt Paving Co., 
 
 197 U. S. 430 360 
 
 M. 
 Mansker Graves and Simpson v. The State of Missouri, 1 Mo. 
 
 452 197 
 
 Marbury v. Madison, 1 Cranch 68 302 
 
 Marley v. Lake Shore R. R. Co., 146 U. S. 162 347 
 
 Maynard v. Hill, 125 U. S. 190 334. 336 
 
 McCormack v. Patchen, 53 Mo. 33 72. 74, 107, 218 
 
 McQuiddy v. Smith. 67 Mo. App. 205 . VT. VH, 22. 214, 219, 279, 367 
 Meachem v. Fitzhugh R. R. Co.. 4 Cush. 291 ... .18, 21. 27, 102, 103 
 
 Moberly v. Hogan, 131 Mo. 19 217, 244, 276. 311 
 
 Mobile and Ohio R. R. Co. v. Tennessee. 153 U. S. 486 345 
 
 Monongehala Navigation Co. v. U. S., 148 V. S. 312 . . .65. 158, 163 
 Montana Company v. St. Louis Mining Company. 152 U. S. 160 138
 
 380 Table of Cases. 
 
 N. 
 
 Neenan v. Smith, 50 Mo. 525 60, 74, 123 
 
 Newby v. Platte County, 25 Mo. 258 
 
 18, 20, 27, 33, 35, 39, 70, 102, 110, 127, 129, 150, 243, 266 
 
 Northern Liberties v. St. John's Church, 13 Penn. 107. . .12, 100, 107 
 
 North Missouri R. R. Co. v. Lackland, 25 Mo. 515 127 
 
 Norwood V. Baker, 172 U. S. 269 67, 272 
 
 O. 
 
 Ohio Life Ins. & Trust Co. v. De Bolt, 16 How. 432 339 
 
 Olcott V. Supervisors, 16 Wall. 678 346 
 
 P. 
 
 Pacific R. R. V. Chrystal, 25 Mo. 544 105 
 
 Palmyra v. Morton, 25 Mo. 594 ... .48, 54, 63, 65, 76, 106, 218. 293, 298 
 
 Penn. R. R. Co. v. Bait, and Ohio R. R. Co., 60 Maryland 263 160 
 
 People V. Mayor of New York, 4 N. Y. 419 29, 121 
 
 People V. Salem, 20 Mich. 452 319, 320 
 
 Pleasant Hill v. Dasher, 120 Mo. 675 138 
 
 Powers V. Hummert, 51 Mo. 136 77, 224, 280 
 
 Pryor v. Construction Co., 170 Mo. 439 276 
 
 R. 
 
 Railroad Co. v. McClure, 10 Wallace 511 346, 348 
 
 Richeson v. Simmons, 47 Mo. 20 333 
 
 S. 
 
 Sadler v. Roth, 59 Mo. 400 67 
 
 St. Charles v. Nolle, 51 Mo. 122 7, 8, 15. 172 
 
 St. Joseph Board of Public Schools v. Patton, 62 Mo. 444.. 187, 233 
 
 Sedalia National Bank v. Donahue, 190 Mo. 407 357 
 
 Seibert v. Tiffany. 8 Mo. App. 33 74, 218 
 
 Sharpless v. Mayor, 21 Pa. St. 147 17 
 
 Sheehan v. Good Samaritan Hospital, 50 Mo. 155 ....69, 111, 24'4 
 
 Shelby v. Guy, 11 Wheaton 367 316 
 
 Smith V. Kansas City, 128 Mo. 23 ... .VI, VII, 120, 155, 272, 279, 288 
 St. Louis V. (See. City of St. Louis) 
 
 St. Louis Fair Association v. Carmody, 151 Mo. 566 211 
 
 Soulard v. St. Louis, 36 Mo. 546 77, 224, 241 
 
 Springfield Bank v. Merrick, 14 Mass. 322 201 
 
 State of Missouri v. Addington, 12 Mo. App. 214 9, 15 
 
 State ex inf. Attorney-General v. People's United States Bank, 
 
 197 Mo. 605 371 
 
 State V. North and Scott, 27 Mo. 464 45, 179, 212 
 
 Stradlung v. Morgan, Plowden 198b at 206a 204
 
 Table of Cases. 381 
 
 state V. New Orleans Navigation Co., 11 Mart. 309 107 
 
 State ex rel. v. Leffingwell, 54 Mo. 458 Ill, 113, 122, 134. 262 
 
 State ex rel. Gentry v. Frey et al., 4 Mo. 120 324, 327, 331 
 
 Stewart v. Palmer, 74 N. Y. 183 135, 137 
 
 T. 
 
 Taylor v. St. Louis, 14 Mo. 20 170, 181, 215, 277, 301 
 
 Thurston v. St. Joseph, 51 Mo. 510 107 
 
 Township of Pine Grove v. Talcott, 19 Wall. 666 . .317, 320, 323, 3&4 
 
 U. 
 
 Union Transit Co. v. Kentucky, 199 U. S. 194 289 
 
 W. 
 
 Walker v. Sauvinett, 92 U. S. 90 347 
 
 Walther v. Warner, 25 Mo. 277 221, 223, 280, 283 
 
 Weaver v. Devendorf, 3 Denio 117 161 
 
 Wells V. Weston, 22 Mo. 384 2, 8, 15, 16, 36, 65, 172, 370 
 
 White V. Cotzhausen, 129 U. S. 329 317 
 
 Williams v. Cammack, 27 Miss. 209 300 
 
 Z. 
 Zoeller v. Kellogg, 4 Mo. App. 163 30, 67, 74, 75, 114, 116, 132. 134, 251
 
 INDEX.
 
 INDEX. 
 
 Authority to tax unrestrained does not exist, 9 to 18. 
 
 to tax never existed except for public purposes. 10 to 17. 
 
 to tax locally for doing acts prohibited by the constitution, 
 implied by the courts, 217, 218, 222, 278, 280, 285, 288. 
 
 to tax, restrictions implied, 12. 
 
 to tax, want of, 9 to 18. 
 
 abuse of, different, want of authority or prohibition, 321. 
 
 courts have none to change interpretation of contracts so as 
 to impair their obligation, 315 to 358. 
 
 Benefits was former foundation for local tax, 69 to 76. 122 to 125. 
 
 was the former rule even in taxation by the front foot, 48 to 50, 
 135 to 139, 234 to 247. 
 
 abolished judicially 169 to 188. 
 
 general benefit formerly rendered the tax unconstitutional, 48 
 to 52. 
 
 a judicial question, 155 to 168. 
 
 front foot rule, the same tax unconstitutional because it is only 
 a general benefit, is perfectly constitutional if levied by the 
 front foot even if it is in fact a damage, 49 to 52. 
 
 local tax a benefit and hence not exempted under general laws 
 of exemption, 97 to 104. 
 
 must be special, 103 to 113. 
 
 tax on 107 to 112, 131. 
 
 and burdens compared under general and local taxation. 114 
 to 121, 215 to 225. 
 
 no benefit, no tax, according to value or by the front feet or 
 by the acre or otherwise, 135. 
 
 damages — history of this litigation, 226 to 249. 
 
 from general and local taxation who shall determine. 226 to 
 249. 
 
 changes in the law, 236 to 249. 
 
 (385)
 
 386 Index. 
 
 Benefits — continued. 
 
 comparisons of decisions wherein real damages in fact are con- 
 stitutional benefits in law, 250 to 259, 260 to 276. 
 
 occupant — tenants using streets or sidewalks even if benefited 
 can not be taxed, 293 to 299. 
 
 owner not benefited can be taxed even if damaged. 293 to 299. 
 
 is a damage, 122, 231 to 234, 291 to 294. 
 
 to private property, who can determine it, 125 to 130, 155 to 
 168, 366, 367. 
 
 burden — comparison — a general tax of one two hundredth of 
 one cent is a burden but a local tax sixty thousand times 
 as much for doing an act prohibited by the constitution oc- 
 casioning a damage fifty-five million times the general tax 
 is no burden but it is a constitutional benefit, 299 to 300. 
 
 burdens — inconsistencies, 277 to 299. 
 
 damage of, 288. 
 
 legislative judgment at fault, 367, 368. 
 
 Burdens — there are none; all abolished by legislation, see Benefits. 
 
 Compensation — what is? This is a judicial not legrislative question, 
 155 to 168, 284 to 290. 
 
 legislature can not fix it, 65, 159 to 168. 
 
 Constitution — New York — the language of the instrument confers on 
 cities towns and villages unlimited powers of local assess- 
 ment and taxation and creating debts, 121 to 134. 
 
 New York — authorizes municipalities to create debts, borrow 
 money, make assessments, lend their credit, tax all prop- 
 erty without any limit or restriction, except as imposed by 
 the legislature, 121 to 134, 233 to 391, 322, 333. 
 
 state history, 226 to 259. 
 
 generally demands judicial inquiry as to benefits, the fact and 
 amount of benefit and damage and value, 125 to 130. 
 
 what may happen determines constitutional validity of law, 
 135 to 142. 
 
 judicial construction a part of it, 315 to 359. 
 
 statutes — judicial twisting to support or overthrow them, 48, 141 
 to 154, 199 to 210. 
 
 restrictions ought to be liberally construed, 82, 83. 
 
 shall it be enforced? 302 to 308.
 
 Index. 387 
 
 Constitution — Continued. 
 
 statutes — judicial interpretations become part as if incorpor- 
 ated into the body of it, 315 to 359. 
 
 intent on the part of le^slature not to violate the constitution 
 will not save the act, 212. 
 
 Contract to violate the law enforced in the court's case in point, 
 
 203 to 214. 
 to violate state constitution enforced in the courts. 214 to 225. 
 legislative power over, 315. 
 for public work payable in tax-bills can not be impaired by 
 
 state legislation. 315 to 358. 
 their obligation may be impaired by congress or a territorial 
 
 legislature, 333 to 336. 
 marriage — state legislature divorce impairs its obligation, 324 
 
 to 336. 
 obligation statute impairment. 337 to 358, 364, 365. 
 
 Courts — can they be trusted by the "business man?", 358. 
 distrusted reasons therefor, 315 to 358. 
 
 "Damnum absque injuria" — This is a d d benefit now by act 
 
 of the state legislatures, 215 to 225. 
 
 Damages for violation of the constitution ought to be trebbled to 
 secure respect, 367, 368. 
 
 legislature can not determine the fact or amount, 125 to 130, 
 162 to 168. 284 to 290, 366. 367. 
 
 benefits, 291 to 314. 
 
 of a benefit, 288. 
 
 to private property who can determine 125 to 130, 155 to 168, 
 
 366, 367. 
 there are none; all forbidden by the constitution, see Benefits. 
 
 Debt — action of, was former method to recover local taxes, 62 to 67. 
 
 Exemptions — Statute exemptions from taxation generally refer to 
 general taxes and state and county taxes that are burdens 
 not to local taxes which are a benefit to the property taxed, 
 97 to 102, 298, 299. 
 
 these are mostly exemptions from benefits, 1 to 373. 
 Inconsistencies, 277 to 299. 
 
 Interpretation of statutes and constitutions are a part of them the 
 same as if incorporated in them. 315 to 359.
 
 388 Index. 
 
 Intent on the part of the legislature not to violate the constitution 
 will not save the act, 212. 
 
 Judicial questions, 284 to 290. 
 
 Legislature — if the legislature of Iowa and West Virginia did just 
 what their supreme courts say they did, then the legisla- 
 tive acts, not the judicial decisions, impaired the obligations 
 of contracts, the Iowa bonds and the Huntington deed, 337 
 to 358. 
 
 intent on the part of the legislature not to violate the constitu- 
 tion will not save the act, 212. 
 
 their tendencies to disregard constitutional restrictions, 324 to 
 336, 359. 
 
 questions not legislative, 284 to 289. 
 
 its powers — municipal bonds and tax-bills compared, 337, 338. 
 
 its powers — how determined — if the supreme court of the 
 United States may disregard the final decisions of the high- 
 est judicial tribunal in the state they may disregard the 
 constitution and the statute, 354. 
 
 its power to determine benefits, 74 to 78. 
 See, also, Benefits and Damages. 
 
 discretion — how much shall the courts allow?, 176 to 179. 
 
 Parliament — its powers compared with the powers of state legisla- 
 tures, 308 to 314. 
 
 Restrictions — expressed in constitutions should be liberally con- 
 strued in the interest of the person and property to be pro- 
 tected, 76 to 83. 
 
 implied in general taxation, 2, 7, 8, 9, 12 to 15, 17. 
 
 implied in local taxation, 18 to 25, 27, 28, 46 to 49. 
 
 apply to all departments of the government alike not to cases 
 of "Eminent Domain" alone, 65 to 67, 131 to 134. 
 
 of Missouri constitution of 1875, 86 to 92. 
 
 former now judicially abolished, 179 to 200. 
 
 constitutional, self enforcing, 187 to 203. 
 
 condemnation for public use fails if benefits to public added 
 to benefits to the property not taken are less than the value 
 of land taken and damage to that not taken, 30 to 41. 
 
 constitutional— "all property shall be taxed in proportion to its 
 value" does not require all property to be taxed, 44, 45.
 
 Index. 389 
 
 Restrictions — Continued. 
 
 owner can not be made personally liable, 53 to 61. 
 
 owner was formerly personally liable, 62 to 65. 
 
 none to tax for doing acts prohibited by the constitution, 359 
 to 372. 
 
 none on the Parliament of England, 301 to 311. 
 
 The general rule in the United States — 100 per cent of the 
 value of the land, 100 per cent of the value of the houses 
 and improvements on land may be taken as local tax for 
 doing public work which is a damage, 313-14. 
 
 constitutional legislative disregard of them, 324 to 365. 
 
 constitutional ought to apply to local taxes, 369. 
 
 one instance where the property owner was not bound to pay 
 for damaging his own property, 371, 372. 
 
 constitutional — ought to be restored, 372, 373. 
 
 constitutional — ought to be liberally construed, 82, 83. 
 
 constitutional — necessity for case in point, 300. 
 
 constitutional — we disregard them and follow Parliament 302 
 to 314. 
 
 Slavery — municipal bonds — special tax-bills all enforced alike not- 
 withstanding the constitution, 359 to 373. 
 
 Taxation not governed by the constitution, 2. 
 
 may be a taking, 4 to 7, 40 to 42, 169 to 175, 179 to 182. 
 
 a taking — cases in point, 4 to 18, 48 to 61, 65 to 67. 
 
 in connection with eminent domain, 18 to 44, 169 to 175. 
 
 twisting of constitutions and statutes, 48, 143 to 154, 199 to 
 
 210. 
 personal liability makes local taxation a taking, 48 to 61. 
 
 discretion of the legislature — how much discretion shall the 
 courts allow to the legislature?, 176 to 179. 
 
 local — valid even for an act entirely destroying the property, 
 276. 
 
 Taxes may be made payable in commodities or in land, 43, 44. 
 Value a judicial question, 125 to 131, 155 to 164.
 
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