turnpike running out of the city of Pittsburg, a distance of seven miles through agricultural lands, the cost to be assessed on all lands at certain distances from the road, the road, it appeared, would be a public benefit; all taxed would be benefited, and some not taxed would be. It was held unconstitutional, as a local assessment for a general public benefit; that the principle on which owners of lots in cities are assessed with the cost of improving the streets was not applicable to agricultural districts, where the benefit is general, and the local benefit cannot be traced as in the case of cities. The principle which runs through all these cases, both those in which the acts have been held valid and those in which they have been held invalid, seems to be that, first, the purpose or object must be public, a governmental purpose, proper to be carried out by the State; then that the legislature, using municipalities as a part of the machinery of the government of the State, may impose upon these local governments some of the duties which would otherwise devolve upon the State. And when the objects to be accomplished by the local governments are of peculiar benefit to all the people of the locality, as a people, a tax may be imposed upon them to accomplish these objects. And the legislature may create taxing districts smaller than any of the territorial divisions of the State, and impose upon the property peculiarly benefited by any public improvement the expense thereof. But when these smaller districts are created, if it appear that the benefit is not peculiar to the property in the district, but extends to the whole of a subdivision of the State, or that the benefit cannot be distinctly traced to the particular property taxed, then the tax should be imposed upon the whole of the subdivision, and its imposition upon the particular property is invalid.2

§ 34. Extension of City Limits.-The cases where the boundaries of cities and towns are extended, and the property of those in the new territory acquired is subjected to taxation for city or town purposes, throw light upon the subject of local taxation. By an act of the legislature of Iowa, the limits of the city of Muscatine were extended one mile on the east, and two miles on the north and west. A person who lived on land one mile from the old limits of the city, and the same distance from any land used for or laid out in city lots, whose land was taxed at $1 per acre, resisted the payment of the tax.

Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255.

The general views of this section, and especially those as to local assessments, are ably and clearly discussed by Sharswood, J., in Hammett v. Philadelphia, 65 Penn. St. 146, and Agnew, J., in Washington Avenue, 69 Id. 353. The former case is doubted by Judge Dillon, Dillon's Mun. Corp. § 619.

The tax was held invalid, the court saying, that while the legislature has authority to regulate local governments, fix their boundaries, and delegate to them the power of taxation for local purposes, and their discretion is very large, yet there is some limit. If there be no benefit, if there be a flagrant and palpable departure from equity in the burden imposed, or if the tax be imposed for purposes in which those objecting have no interest, and are therefore not bound to contribute, it is no matter in what form the power is exercised, whether in the unequal levy of the tax, or in the regulation of the boundaries of the local government which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the provisions of the Constitution designed to protect private rights against aggression. In determining whether lands of a rural character situated in the limits of a city are subject to taxation for municipal purposes, we are to ascertain if they are benefited by the municipal government. The purposes for which they are held is a controlling fact in pursuing this inquiry; if used for agricultural purposes merely, and deriving no benefit from municipal expenditures, they are not subject to taxation for municipal purposes; but if held as city property, with a view of putting them on the market as such, when they shall reach a value corresponding with the view of the owners, they are regarded as fit subjects for such taxation. So property of a suburban character, remote from the center of the city, embracing several acres, occupied for a residence and improved with gardens, vineyards, lawns, &c., to suit the taste and convenience of the owner, who thus enjoys the advantages of proximity to a city, is the subject of city taxation.'

The fact that the agricultural lands were in the limits of the original charter, or that the owner asked for and aided in procuring the charter, does not affect the question; the principle is, that the person who receives no benefit from the municipal government should not bear any of its burdens. In Kentucky and Nebraska, where the persons and property brought within the limits are so situated that they enjoy the advantages of the local government, they have been compelled to pay local taxes, but where they receive no benefit-where

3

Morford v. Unger, 8 Iowa, 92; contra, Linton ". The Mayor and Council of City of Athens, 53 Ga. 588. Land used only for agricultural purposes, purchased after the limits had been extended to cover it.

2 Durant v. Kaufman, 24 Iowa, 194; Langworth v. Dubuque. 13 Id. 86; s. c. 16 Id. 271; Fulton v. Davenport, 17 Id. 404; Buel v. Ball, 20 Id.; O'Hare v. Dubuque, 22 Id. 144; Deeds v. Sanborn, 26 Id. 419; Deiman v. Fort Madison, 30 Id. 542. The latter case contains a review of all the Iowa cases.

* Buell v. Ball, 20 Iowa, 282; affi'd 22 Id. 144, and especially in Deeds v. Sanborn, 26 Id. 419.

4 Cheany v. Hooser, 9 B. Mon. 330; Sharp's Ex'r v. Dunavan, 17 Id. 223.

the lands are only used for agricultural purposes the imposition of the taxes has been held invalid.' The distinction between the liability of a citizen for State and local taxes is very clearly expressed by Mason, J., in the latter case: "The relations of the citizen to the State, and to a particular city, are very different. Of the former he is a member, both rightfully and legally. He owes to it certain high and sacred duties, not the least of which is contributing to its support. Of the latter, he may not be a member; he may owe to it no duties; he may derive from it no benefits. The construction of a sewer in a city benefits the citizens of the city; it is of no benefit to the farmer residing several miles from the city; the former should be taxed for the sewer, the latter should not. A city's taxes are for local, a State's for general purposes-of one a man may or may not be, of the other he must be, a member. The improvements of one may or may not

those of the other must measurably benefit him.”

Where a city was authorized to levy a tax on real estate outside of the limits of the city, to the distance of half a mile, the act was declared unconstitutional. The court say: "This is an attempt 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 persons and things for local purposes, to impose a tax on lands lying beyond its limits; or, in other words, arbitrarily, under the mask of a tax, to take annually, from those who are without its jurisdiction, a certain portion of their property. It has been the practice of American governments to allow municipal corporations control of local affairs, and to tax persons and things within their jurisdiction for local necessities; in no case have they been clothed with power to tax others, out of their limits, for their own local purposes." 2

§ 35. When Local Taxation Compulsory; when Not.—If the legislature has the power to raise taxes for public purposes, and to delegate to municipal corporations the authority to impose taxes for purposes which are of special benefit to the inhabitants of those corporations, it would seem to follow, inevitably, that the consent of the municipality was not a matter of importance. The legislature of New York appointed commissioners to make, widen, extend and improve certain highways in the towns of Yonkers and East Chester, the expense to be paid by a sale of bonds of those towns, which were

1 City of Covington v. Southgate, 15 B. Mon. 491; Bradshaw v. Omaha, 1 Neb. 16. Wells v. City of Weston, 22 Mo. 385. In the Matter of Assessment of Lands in the Town of Flatbush, 60 N. Y. 398.

to be issued by the town supervisor and clerk, upon the requisition of the commissioners. The act was held valid. Church, J., delivering the opinion of the court, says: "The making and improvement of public highways, and the imposition and collection of taxes, are among the ordinary subjects of legislation. The towns of the State possess such powers as the legislature confers upon them. They are a part of the machinery of the State government, and perform important municipal functions, which are regulated and controlled by the legislature. The legislature, in substance, directed certain highways to be made and constructed in the town of Yonkers, and imposed a tax upon the town to pay the expenses of the work. The bonds to be given are town bonds; they are to be issued by town officers, and the tax to pay them is imposed upon the property of the town. If the legislature may authorize the town to incur this debt, why may it not direct it to be done? As a question of power, I am unable to find any restriction in the Constitution. It is not within the judicial province to correct all legislative abuses.

"That local expenditures and improvements should, in general, be left to the discretion of those immediately interested, is manifestly just, and is in accordance with the theory of our government. But when the power is conceded, we have no right to inquire into the motives or reasons for doing the particular act. If the object of the expenditure was private, or if the money to be raised was directed to be paid to a private corporation, who were authorized to use the improvements for private gain, the question would be quite different; and in this respect there is a limit, beyond which legislative power cannot be legitimately exercised. Here the purpose is confessedly public." In Illinois, where there is an express provision of the Constitution limiting the legislature in the grant of taxing power to the corporate authorities of the municipality alone, the court, in passing upon this provision, expressly reserved the question as to whether there might not arise cases where the legislature could act directly upon the persons and property of the municipalities for certain burdens proper to be borne by these localities, whether they consented thereto or not.2

1

§ 36. Where Consent of Municipality required.-Where a city

1 People ex rel. McLean v. Flagg, 46 N. Y. 401, 405, 406.

People v. Mayor of Chicago, 51 Ill. 17; see p. 30; Darlington v. Mayor of New York, 31 N. Y. 164, 190, 191. An act authorizing damages to property by riot to be imposed upon the municipality where such riot occurred. State v. Tappan, 29 Wis. 672. The point was reserved as to the authority of the legislature to compel a municipality to make improvements for a strictly public municipal purpose. See post, 57; s. P. 29

Wis. 416.

was authorized by act of legislature to improve its harbor, at an expense not to exceed $100,000, to be raised by city taxation, a contract was made for a larger amount, and a subsequent act of the legislature ratified the contract. It was held that this curative act was not sufficient, proprio vigore, without evidence that such act was procured with the assent of the corporation, or had been subsequently acted upon or confirmed by it, to make the contract obligatory upon the corporation.1 So, it has been held in the same State that the legislature cannot direct a subscription by a municipality to a railroad or other private corporation without the assent of the municipality, nor confer upon cities and towns the power to raise money by taxation for the purpose of paying bounties to soldiers in the late war, unless voluntarily imposed by a majority of the citizens thereof, or by consent of the municipality evidenced in the same manner.3

Most of the cases in which subscriptions to internal improvement companies, or donations, have been held valid, proceed upon the supposition that the municipality has consented to the subscription or donation, while other cases, which hold such subscriptions or donations invalid, claim that the assent of the municipality in no way affects the question-that it is one of the powers of the legislature." In the language of Judge Cooley, in the case last cited, "the power to impose such taxation, if existing at all, could not come from, and was not aided by, the municipal votes. The legislature has the same power to impose taxes without their assent as with it. The authority must come from the plenary power of the legislature over the whole subject of taxation, which it would exercise upon the municipalities in its discretion."

§ 37. When Action of Municipality not compulsory.—An act providing for the appointment of an agent of the town by the county commissioner, with power to purchase liquors on the credit of the town, and to sell the same for certain specified purposes, and account for, and pay over, the proceeds, the town not having consented to the appointment, or ratified the contract, was held unconstitutional, on the ground that the legislative power over municipal corporations is

'Hasbrouck v. City of Milwaukee, 13 Wis. 37-46.

2 Mills v. Charlton et al., 29 Wis. 411, 413, 414.

3 State v. Tappan, 29 Wis. 672; cases of Guilford v. Supervisors of Chenango County, 13 N. Y. 143, Brewster v. Syracuse, 19 Id. 116, and Litchfield v. Vernon, 41 Id. 141, disapproved.

4 Authorities in § 15, ante.

5 Buell v. Ball, 20 Iowa, 282, 289; People v. State Treasurer, or Bay City v. State Treasurer, 23 Mich. 499, 503; s. P. Town of Duanesburgh v. Jenkins, 57 N. Y. 177, especially Johnson, J., as to assent not essential, p. 191.