Washington Avenue. local taxation, but one more doubtful, and, at first view, not so easily perceived to be within the legislative power; that is to say, the assessment of the property of one man to pay the compensation due tc another whose property has been taken for a public use. Here the right to assess seems to be further removed from the true source of the power, and it is more difficult to discern the liability of the few to pay, what the State herself seemingly should pay by general taxation, for property taken under the power of eminent domain. In consequence of this doubt, the question was presented to this court in the case of McMasters v. The Commonwealth, 3 Watts, 292. There the property of Nancy Knox and others was taken for the purpose of making a new street from the Diamond to Fifth street, in the city of Pittsburg, and their compensation ascertained by a jury of freeholders. The McMasters' lot was then assessed with a part of the compensation in proportion to the benefits found by the jury to be conferred upon the lot by the opening of the adjoining new street. The eminent counsel of McMasters, the late Judge FORWARD, seems to have considered the assessment of his property as an exercise of the power of eminent domain, and denied its validity upon the ground that the act proposed to take his property, or, at least, his money, and to compensate him in benefits. This he contended the legislature could not do, but must compensate him in money, citing Vanhorne v. Dorrance, 2 Dall. 315, on this point. Justice ROGERS, however, denying the authority of Vanhorne v. Dorrance, held that compensation under the constitution need not necessarily be in money, but may be in whole or in part by actual benefits conferred; instancing the numberless turnpike and canal laws (to which railroad acts may be added), in which the viewers, in estimating damages, are required to take into consideration the advantages accruing to the land-owner. And, when he comes to consider the question as to the assessment on McMasters' lot, he admits that it is a new feature in our legislation, yet thinks the principle not new, citing Livingstone v. The Mayor of New York, 8 Wend. 85. But what the precise principle is, he does not very distinctly define, though in the main he seems to derive it from the power of local taxation for benefits received. It appears to me, when closely examined, this is its only true source. It is simply a new develop ment of that principle of local taxation before mentioned as undisputed, which assesses on the property benefited or its owner a tax, in Washington Avenue, proportion to the superadded value of the property, caused by the local improvement of which this property has a peculiar advantage beyond that of others not in like circumstances. For if we analyze the transaction, we shall find that the compensation paid to Mrs. Knox and others for their property taken to make the new street, is a thing wholly distinct from, and independent of, the money paid by McMasters. The assessment upon him is not simply by way of taking his money to pay them, but was by way of an assessment upon him for the benefits he received from the improvement. His money, it is true, passes directly into their compensation, but this is merely to avoid circuity of payment, by an immediate appropriation of his tax. In principle, therefore, it is an independent transaction, and is the same thing as the money paid by an abutting lot-owner for the pavement before his door, into the public treasury, and thence paid out to the paver of the street. Yet in that case what difference would it make were the money of the abutting lot-owner appropriated directly to pay the paver, provided his assessment be made. on the principle of his paying according to his proportional benefit? Indeed, this is nearly the present system of paving streets in Philadelphia. The exercise of this power of assessments for benefits, as before remarked, is not by way of eminent domain, in the usual sense of this term, for it is not a taking at all, followed by compensation for the taking; but it is a special mode of taxation, which equalizes burdens, by a counter-balance of benefits, whereby those benefited more pay more, and those benefited less pay less. It is thus special as contradistinguished from general taxation, but not special as making one man to pay all or more than his just proportion of a common burden. General taxation pays no regard to equality of burden, further than to lay the tax in proportion to the amount of the assessable property of each tax payer, throwing out of view all questions of special benefit. So long, therefore, as the benefits of each tax payer are justly and impartially assessed under the special system, I cannot see that the general system is more just or impartial. Indeed, if faithfully executed, the special system seems to be more equal and just, for, under the special system, some may be greatly benefited more than others, and yet, pay but a small proportion of the tax, considering what they receive. For example, a poor man may send many children to school, while a man of large property, having none to send, may pay a large tax; and a man Washington Avenue. being greatly benefited by a public road, may pay a very small proportion of the tax which keeps it up. Taxation, according to benefits received, is neither unequal nor unjust, and cannot, therefore, come into conflict with those clauses in the bill of rights, which regard as sacred the right of private property. So long, therefore, as a law faithfully and reasonably provides for a just assessment according to the benefits conferred, and does not impose unfair and unequal burdens, it cannot be said to exceed the legislative power of taxation, when exercised for proper objects. It is on this ground only that assessment, according to the frontage of property on a public street to pay for its opening, grading and paving, is to be justified. As a practical result, in cities and large towns, the per foot front mode of assessment reaches a just and equal apportionment in most cases. Hence, this mode has been deemed a reasonable exercise of the taxing power in such places, with a view to taxation according to the benefits received. Whatever doubt might have been originally entertained of it as a substitute, which it really is, for actual assessment by jurors or assessors under oath, it has been so often sanctioned by decision, it would ill become us now to unsettle its foundation by disputing its principle. But it is an admitted substitute, only because practically it arrives, as nearly as human judgment can ordinarily reach, at a reasonable and just apportionment of the benefits on the abutting properties. Hence, the fairness of the rule of charging benefits by frontage was a conceded point, in Hammett v. The City of Philadelphia, 65 Penn. St. 155 (3 Am. R. 615). But this rule, as a practical adjustment of proportional benefits, can apply only to cities and large towns, when the density of population along the street, and the small size of lots, make it a reasonably certain mode of arriving at a true result. To apply it to the country and to farm lands would lead to such inequality and injustice as to deprive it of all soundness as a rule, or as a substitute, for a fair and impartial valuation of benefits in pursuance of law; so that, at the very first blush, every one would pronounce it to be palpably unreasonable and unjust. Judged of by this rule for deciding in a question of constitutional power, the law in this case cannot stand. Whether we view this avenue as a macadamized highway, seven miles long, or three hundred, the result is the same to those along its route. To charge its cost upon the farms lying within one mile Washington Avenue. on each side, at a fixed sum per acre, is so obviously onerous and unreasonable, and leads to such a destruction of private right, and such unfairness of imposition for the advantage of the public at large, and of individuals who pay nothing, it cannot, on any fair principle of reasoning, be said to be a valuation according to benefits. In other words, it cannot with any degree of truth be pronounced to be a proper substitute for a just and impartial valuation of benefits. This needs no reasoning to make it plainer than the proposition presents itself to the mind the moment it is stated. If unreasonable and not a fair substitute for a valuation made by a disinterested tribunal, acting according to the law of the land, then it plainly is not within the principle of the many decisions, in this and other States, recognizing the per foot frontage rule as a fair mode of measuring the benefits, and is consequently not a legitimate method of assessment upon the adjacent farm lands. I admit that, if we do not analyze the reason and trace the origin of the frontage rule, there is a seeming analogy between the Washington avenue act and many preceding it for the improvement of streets in cities and towns. avenue. But reasoning by analogy is sometimes a dangerous source of error, and is always so, if we fail to see that the analogy itself is accurate. In the present case, an examination of the facts, in which the per foot frontage rule is based, discloses at once the want of analogy between large farms with single occupants or owners, or wild or untenanted land, in the country, and the small lots of a crowded street in a populous town. The legislature, therefore, made a mistake in fixing such a burden upon the lands along the route of this It is in fact nothing more than a law to coerce certain landowners to pay for a public improvement in which their interest is no greater, and as to some of them not so great, as that of many others who pay nothing; and it offends against the clear intent and spirit of the bill of rights. There is no case in our books wherein the legislative power to tax has been maintained with greater vigor and ability than in Sharpless v. The City of Philadelphia, 9 Harr. 147; yet. even there, the then chief justice admits (p. 166) that the exercise of the power may be forbidden by clear implication, as well as express restriction. "It is not every act the legislature may choose to call a tax law that is constitutional." "The whole public burden," he contends, "cannot be thrown upon a single individual, under pretense of taxing him." This is a concession that taxation has a limit per se, Washington Avenue. - and is not always co-extensive with legislative exaction. When, therefore, the constitution declares, in the ninth article, that among the inherent and indefeasible rights of men is that of acquiring, possessing and protecting property that the people shall be secure in their possessions from unreasonable seizures that no one can be deprived of his property unless by the judgment of his peers, or the law of the land that no man's property shall be taken or applied to public use without just compensation being made- that every man for an injury to his lands or goods shall have remedy by due course of law, and right and justice administered without sale, denial or delay - and that no law impairing contracts shall be made-and when the people, to guard against transgressions of the high powers delegated by them, declared that these rights are excepted out of the general powers of government, and shall forever remain inviolate, they, for their own safety, stamped upon the right of private property an inviolability which cannot be frittered away by verbal criticism on each separate clause, nor the united fagot broken, stick by stick, until all its strength is gone. There is a clear implication from the primary declaration of the inherent and indefeasible right of property, followed by the clauses guarding it against specific transgressions, that covers it with an ægis of protection against all unjust, unreasonable and palpably unequal exactions under any name or pretext. Nor is this sanctity incompatible with the taxing power, or that of eminent domain, where, for the good of the whole people, burdens may be imposed or property taken. I admit that the power to tax is unbounded by any express limit in the constitution that it may be exercised to the full extent of the public exigency. I concede that it differs from the power of eminent domain, and has no thought of compensation by way of a return for that which it takes and applies to the public good, further than all derive benefit from the purpose to which it is applied. But, nevertheless, taxation is bounded in its exercise by its own nature, essential characteristics and purpose. It must, therefore, visit all alike in a reasonably practicable way, of which the legisla ture may judge, but within the just limits of what is taxation. Like the rain, it may fall upon the people in districts and by turns, but still it must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction. To do so is confiscation, not taxation, |