10.

11.

12.

BRADSHAW v. THE CITY OF OMAHA.

· Public object. When a city seeks to take private property for its use, whether under the form of taxes or otherwise, the object for which it is taken must be a matter of public advantage.

- Tests. If lands have been divided into town lots, and purchasers of small parcels have been invited to settle thereon, if the owner has done any affirmative act inducing the corporate authorities to treat them as town property, or if town settlements have approached near to them, so that their enjoyment in peace and good order demands the police regulations of a city, they are justly liable to municipal taxation.

:-. If the owner has done no act, such as laying his lands off into lots, or asking for city grades, or to have streets opened to his lands, if he retains them in a large body, if they are half a mile from the settled part of the town, and no streets are or need to be opened for the use of owners of adjoining lots, occupied as town property, and their quiet enjoyment does not require a city police, then legislation subjecting them to city taxation, is unconstitutional and void.

The appellant filed his petition in the District Court for Douglas county, against the City of Omaha and Hahn, county treasurer, and alleged therein the following facts:

That he was, and for three years had been, seized of a quarter section of land; that part of the land included within the limits of the city was used for agricultural purposes merely, and that the town site laid off into lots was much larger than was now, or was likely to be, required for city purposes; that the plaintiff's land was two miles from the settled part of the town, and was one mile from any lands settled, improved, or occupied as town lots; that it is vacant and has never been divided, and he does not intend to divide it, into lots for town purposes; that such an enterprise would be impracticable, because it is distant from the city, and surrounded by lands which are vacant or only used for agricultural purposes; that by an act of the Legislature of the late Territory it had been included within the limits of said city; that he did not know of the passage nor of the application for said act, until three months before filing his petition; that the act [S. C. N.]

2

BRADSHAW v. THE CITY OF OMAHA.

was passed for the sole purpose of subjecting the lands to the burdens of city taxation, and to reduce the city taxation on property previously within its limits, by compelling the plaintiff and others similarly situated to share the same, and that the peace or good order or prosperity of the city did not require that the lands should be brought under its municipal control; that the city assessor has assessed the said plaintiff's said quarter section of land, as city property, and for the expenses of its government, at the rate of forty dollars per acre; and the same are included in the levy of taxes, by said city, for said purposes; that the said defendant Hahn, as treasurer of the county, has advertised the same for sale, for the purpose of raising the sum so assessed and levied thereon, and unless restrained by the injunction of the court, will, in his official capacity, sell the same for said purpose.

The prayer of the petition is for an injunction, and that it be, by the judgment of the court, declared that said lands are not liable for the said taxes.

To this petition the defendants demurred generally. The demurrer was sustained, and the petition dismissed. To reverse this judgment this cause is brought to this

court.

J. M. Woolworth, for the appellant.

I. The act is obnoxious to the objection of taking A's property and conferring it upon B; which is violative of the principles of natural justice.

1. This objection, if well founded in fact, is fatal, although it has not the sanction of constitutional provi sions.-Vattel, C. 4, sec. 45-6; C. 1, ch. 4, sec. 51; 1 Kent's Comm. 600*; 1 Black. Comm. 41* and 91*; Sen. Tracey, in Bloodgood v. Mohawk R., 18 Wend. 56; Taylor v. Porter, 4 Hill, 146; Gardner v. Newberg, 2

BRADSHAW v. THE CITY Of Omaha.

John. Ch. 162; Mr. Justice CHASE, in Calder v. Bull 3 Dall. 386; Wilkinson v. Leland, 2 Peters, 654; Terrett v. Taylor, 9 Cranch, 43.

2. Unless the rule be changed, either by the character of the parties, or by the nature of the proceeding, the objection is well founded in fact; for the allegation in the petition is, that the sole object of the statute and of the proceeding, is to compel the owners of lands not within the benefit of the municipal government, to divide the expenses of supporting it with those who have need of it. 3. The fact that the party for whose benefit the property is taken is a city, does not affect the case. In re Albany Street, 11 Wend. 149; In re John Street, 19 Wend. 659; Morse v. Stocker, 1 Allen, 150; Bacon v. School District, 97 Mass. 421.

4. Nor is the case affected by the fact that the oppression is exercised under the name of taxation.

a. Taxation is a taking of private property for public use, and is justified only by returning for the money thereby taken, the compensation of the benefits of govern ment. The People v. The Mayor of Brooklyn, 4 Coms. 419; Morse v. Stocker, 1 Allen, 159.

b. The nature of the act is not changed by giving it a name which sounds as if it were lawful.-Walker v. Board of Public Works, 16 Ohio, 540; Mays v. Cincinnati, 1 Ohio St. 268; Wells v. City of Weston, 22 Mis. 384.

II. The act is obnoxious to the further objection that it takes the plaintiff's property, without due process of law. 1. This principle of individual liberty, although not expressly saved to the people by a special provision in our constitution, must be taken as one of those rights which are retained by the general terms of section twenty of the declaration of rights; for it has always been a fundamental doctrine of English liberty.-2 Sullivan's Lec. 243, et pass; Gardner v. Newbergh, 2 John. Ch. 162.

BRADSHAW V. THE CITY OF OMAHA.

2. The act confiscates the property of the plaintiff, for the benefit of the citizens and owners of property, within the just limits of the city.-The People v. Smith, 21 N. Y. 595; Wenehamer v. The People, 3 Kern. 390; Taylor v. Porter, 4 Hill, 140; Holden v. James, 11 Mass. 396.

III. The act infringes the provision of the constitution, which forbids the taking of private property for public use, without just compensation.-Cheany v. Hooser, 9 B. Mon. 330; Covington v. Southgate, 15 Id. 491; Morford v. Weger, 8 Iowa, 82; Langworthy v. Dubuque, 13 Id. 86; S. C. 16 Id. 271; Fulton v. Davenport, 17 Id. 404.

IV. The act, when taken by itself, does not authorize the taxation of the plaintiff's lands. That power is claimed from the other provisions of the charter, which, as is assumed, are extended over them. The mischiefs complained of are, therefore, collateral consequences of the act, which it is reasonable to suppose were not in the view of the legislature. The statute should be construed so as to avoid these mischiefs.-1 Blackstone's Comm. 91*; Co. Litt. 360; Beatty v. Knowler, 4 Peters, 152; Sharp v. Spier, 4 Hill, 76.

G. W. Ambrose, contra.

I. The first thing that strikes one on the examination of this petition, is the manifest impropriety in the court entertaining the question it presents.

No principle is better settled than that the legislature of a State has complete authority to amend charters of munici pal incorporations, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, over-rule their action whenever it is deemed unwise, impoli tic, or unjust, and even to abolish them altogether in the legislative discretion. The authorities on this subject are so numerous, and the cases in which this doctrine has been

BRADSHAW v. THE CITY OF OMAHA.

declared are so various in character and so familiar, that it seems almost unnecessary to refer to the following, which are some of them :-Coles v. Madison County, Breese's R. 115; Richland County v. Lawrence County, 12 Ill. 1; Trustees of Schools v. Tahann, 13 Ill. 27; Robertson v. Rochford, 21 Ill. 451; People v. Power, 25 Ill. 187; Harrison Justices v. Holland, 3 Grattan, 247; Brighton v. Wilkinson, 2 Allen, 27; Sloan v. State, 8 Blackford, 361; Mills v. Williams, 11 Iredell, 558; Weeks v. Milwaukee, 10 Wis. 242; People v. Draper, 15 N. Y. 532; Aspinwall v. Commissioners, 22 How. 364; St. Louis v. Allen, 13 Mis. 400; State v. Cowan, 29 Mis. 330.

If this principle is correct, then clearly the question of extending the boundaries of a city is a question of legisla tive discretion, to be determined upon a view of all such considerations of policy as have a bearing upon it, and with reference to the probable growth of the city, as well as of its present needs. The city bounds can never be confined to the precise limits occupied for urban purposes on the day its charter is passed; but the legislature looking to the future with wise foresight will be expected in our rapidly growing country to provide to-day for the wants of to-morrow, and to so frame their charters of incorporation as to bring within their influence all that territory that feels the benefit of city government in enhanced prices, and that, in the opinion of the legislature, is so distinctly pointed out for speedy occupation for city purposes, as to justify its being included.

And if the question is one of legislative discretion, no argument can be required to prove that the courts can have no jurisdiction over it. A court might with the same propriety review and set aside the legislative action in levying or refusing to levy a particular State tax; in paying or refusing to pay a State debt; in providing or refusing to provide bounties to soldiers; in passing or refusing to pass