BRADSHAW V. THE CITY OF OMAHA.

authorities from selling the plaintiff's lands for non-payment of taxes levied by the city, and to have it declared by the judgment of the court, that these lands are not liable to be taxed by the city. To the bill a general demurrer is filed. The land thus sought to be protected, lies two miles from the settled part of the town, and one mile from any lands improved or occupied as, or laid off into town lots. The lands adjoining it are either vacant, or are used for agricultural purposes only. Between it and the city, lies a whole quarter section undivided and cultivated as a farm. A cemetery adjoins a part of it on the south, and also the large farm of Jesse Lowe. On the east is a tract of many hundred acres almost entirely unoccupied, and whatever improvements there are, are agricultural in their character

If

any land can be protected from city taxation, it would seem as if this should be. The plaintiff is entitled to the relief he seeks if the court can grant it. It is insisted that we have not the power to grant it, because, it is said, the taxing power is in our government, committed exclusively to the discretion of the legislature, and this defense is put forward as a question of the jurisdiction of the court.

Questions of this nature always require the first attention. It is to be observed, at the outset, that there is no pro vision in our constitution which in terms limits the legisla tive power of imposing, or distributing or enforcing taxes. I speak of provisions aimed directly at this power. In the constitutions of most of the States, express provisions on this subject will be found; as, for instance, that the levy of taxes shall be uniform, that the property of non-residents shall not be taxed higher than the property of residents, &c. We have no such clauses in our constitution. But, as we shall see hereafter, we have some general provisions, under the protection of which, the taxing as well as any other power of the legislative or executive branches of the government, may be restrained.

BRADSHAW v. THE CITY OF OMAHA.

Another observation: the case before us presents the question of the power of the legislature, to authorize a municipality to tax for its purposes any and all property, whether justly within its territorial limits or not; which is very different from the question of such power, when exerted by the State for State or general purposes. The relation 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.

To illustrate suppose the city of Omaha were by its proper authorities to determine to build a sewer on one of its streets; its citizens would be interested in and benefited by this work and would be justly required to pay for it. But would it be right to require a farmer, living ten or five, or even two miles from the city, to share the burden of this expense with those who justly should pay for it? Obviously not. On the other hand, suppose the State should determine to build a road through some section, remote from some other, and attempt to raise the money for defraying the expense by taxing all parts alike. This would not be unjust. By opening up, improving, developing one district of country, drawing in settlers, planting farms, building schools, churches, homes, nursing commerce, and fostering, rearing, extending communities, the State and every district of the State is benefited, and every citizen is benefited. It is by the aiding of one section at a time, by developing it, by building it up, that the State grows to that great majestic, glorious stature, which sheds its lustre on every citizen, and fills his breast with pride, no matter how humble he may be.

In a word, a city's taxes are for local, a State's for general

BRADSHAW v. THE CITY OF OMAHA.

purposes. Of the 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.

Extreme cases may be stated on the one hand and on the other. The supposed instances may come so near together that the distinction may be without a difference. But it is not the duty of the courts to lay down exact rules to which every case must be brought. It never attempts to lay down more than general rules, which are flexible in their just application to particular cases.

The distinction which is pointed out above, applies to the power or propriety of the court interfering with what the counsel call "legislative discretion," when conferring taxing power for the benefit of the State, and when conferring them for the benefit of a city. In the former case, in almost every instance, the exercise of the taxing power is political, but in the latter it is purely administrative in almost every instance. I can only point out these obvious distinctions, without following them out or illustrating them at length. The fallacy of the argument of the learned counsel for the city, consists in laying down what he deems just considerations as to the jurisdiction of the court, and then applying them to an entirely different subject of municipal taxation.

The question is then narrowed down to this: Can a legislature authorize a city to tax for its support, lands not reasonably to be considered city property?

We are able to go along with the counsel for the city in many of his positions. We think with him that the legislature has exclusive authority to amend the charter of municipal corporations, enlarge or diminish their power, extend or limit their boundaries or even to abolish them altogether. And this may be done with a view to the future, as well as to the present wants of the city. So too,

BRADSHAW v. THE CITY OF OMAHA.

we agree with him if the question is purely one of legislative discretion, the court has no jurisdiction over it and that we cannot declare a law unconstitutional from any regard to the motives which influenced the legislature in passing it. But this does carry us one step towards the point he must reach, to maintain his proposition. The legislature may very well be vested with exclusive power to determine whether a municipal goverment is needed, to aid in maintaining the public order, over lands which are not justly taxable for the maintenance of such a goverment. And as that question is not one of property or private right, with which alone the court can deal, it will not meddle with it.-Georgia v. Stanton, 6 Wallace, 50.

But it is a question of property and private rights, whether such lands should bear a burden or a share of a burden, for another's benefit. And therefore it may be a question for the determination of the court.

But we may, and we are bound in determining the constitutionality of a law, to examine all enactments bearing on the question; and if in so doing we discover that their effect, all taken together, is unjust, and oppressive, and violative of some principle of the constitution, we are bound to raise the shield of that fundamental charter over the otherwise prostrate and powerless citizen. While we shall always thus interfere with hesitation, and only with my act which the legislature may pass when our way i clear before us, we shall not consciously fail in this our ighest and most sacred duty.

Of course it is admitted that if the legislature pass an act which takes private property for public use, without just compensation, it is unconstitutional, and must be so declared by the court.

The counsel for the city assumes that that constitutional provision does not apply here, because for some reason the subject is committed exclusively to legislative discretion.

BRADSHAW V. THE CITY OF Omaha.

He did not point out any reason why it should not apply here as well as elsewhere. Nor does any other reason occur to me but these two: that the property is taken for a city, and that there is something in the nature of taxation which distinguishes that mode of taking a man's property from all others.

Is the nature of the act complained of changed because the money raised by the tax goes to a city? We think not. We shall content ourselves by presenting on this point the views of learned courts which seem to us decisive.

The case In re Albany Street, 11 Wend. 149, was a motion on behalf of the city of New York to confirm an assessment of the damages arising from the proposed extension of Albany street. It was resisted by Trinity Church, on the ground that more of its church-yard was taken than the proposed extension of the street required.

This was justified by the act of the legislature, which provided that where part only of any lot or parcel of land shall be required, if the commissioners deem it expedient to include the whole lot in the assessment, they shall have power so to do, and the part not wanted for the particular street or improvent, shall upon confirmation of the report, become vested in the corporation, which may appropriate the same to public uses, or sell the same in case of no such appropriation.

Chief Justice SAVAGE delivered the opinion of the court, and said on this point: "If this provision was intended merely to give the corporation capacity to take property under such circumstances, with the consent of the owner, and then to dispose of the same, there can be no objection to it but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power, which with all respect, it did not possess.