People ex rel. Griffing v. Mayor of Brooklyn

Brown, J.

The 40th section of the act to incorporate the city of Brooklyn, passed April 8,1834, provides that assessments for grading, leveling, graveling and paving streets, avenues and squares, shall be submitted to the common council for confirmation, who are empowered to alter the same in such manner as in their opinion justice may require. From the return in this case it appears that the assessment for grading Flushing avenue was submitted to the common council accordingly, and by them confirmed on the 10th day of July, 1848. This act of confirmation is an exercise of judicial authority, and the proceedings are therefore subject to be removed into this court by the common law writ of certiorari, for review. (6 Wend. 564. 20 John. 430. 8 Pick. 218. 2 Hill, 14. 5 Barb. S. Court Rep. 43.

In examining the proceedings of the mayor and common council of Brooklyn, for grading Flushing avenue, as they appear in the return to the writ issued in this cause, we encounter at the threshold a grave question of constitutional law. The power of the legislature to pass laws giving to others authority to take private property for public use, such as streets, avenues and highways, or to defray the expense of their regulation and improvement, and to award compensation in benefits or the enhanced value to be derived from such use, is drawn in question and stoutly denied. The relators insist that such laws, and the proceedings had under them, are infractions of the sixth section of the first article of the constitution, which declares, that “ private property shall not be taken for public use, without just compensation.” As early as the 16th of April, 1787, the like power was given by an act passed at that time, to the mayor and common council of the city of New-York; and under authority of similar legislative acts, it has been exercised to a very considerable extent in the cities and villages of the state from that time to the present. The constitution of 1777 contained no provision like that referred to in the constitutions of 1846 and 1821.; and until the time of the adoption of the latter, the only limitation upon legislative power over private property, was the principles of natural justice, which in free governments have usually been found sufficiently strong to protect the rights of private property and personal liberty. Whether the absence of express constitutional restraints will account for the introduction and long continuance of this mode of converting private property to public use, it may not be worth while now to determine; for it is obvious that if, upon examination, it shall be found to be in conflict with the_ organic law, neither the antiquity of its origin nor the sanction of custom and common usage, can save it from judicial condemnation.

The judgment of the court of errors, in the case of Livingston v. The Mayor, &c. of New-York, (8 Wend. 85,) was rendered after the provision for the security of private property was en-grafted upon the constitution of 1821. It affirmed—as far as such a judgment could affirm—the validity of these laws. And upon the doctrine of stare decisis it maybe said, they must continue to be regarded as binding and effectual for all time to come. “ If a decision,” writes a learned commentator, “ is made upon solemn argument and mature deliberation, the presumption is in favor of its correctness ; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it.” And after saying that there are more than a thousand cases in the English and American books which have been doubted, overruled, or limited in their application, he adds, “ Even a series of decisions are not always conclusive evidence of what is law, and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change.” The decision in Livingston v. The Mayor of New-York was given in 1831, and the main point in controversy was whether the lands taken for the street had not already been dedicated to the public use. Two opinions only were delivered, which relate almost exclusively to this branch of the case. The objection to awarding compensation in benefits to be derived from the improvement, was distinctly taken upon the argument. But the opinion of Senator Sherman barely alludes to it, while that of Chancellor Walworth, (entering into no argument and quoting no authority,) assumes, at once, the whole ground' of controversy, and speaks of the right to make compensation in benefits as a well settled principle. We look into these opinions in vain for the evidence of that solemn argument and mature deliberation, which upon the doctrine of stare decisis, should give to this case the weight of authority sufiicient to foreclose the judgment of all other tribunals upon the same question. If Mr. Justice Bronson, is not clearly right when he says, in Butler v. Van Wyck, (1 Hill, 438,) “ It is going quite too far to say that a single decision of any court is absolutely conclusive as a precedent,” he certainly does prove, by reference to numerous cases, that the court for the correction of errors did not abide by its own decisions. I shall therefore treat the question of the validity of the power given to the defendants, by the 40th section of the act to incorporate the city of Brooklyn, as one that is open and unsettled.

Seen in its real aspect, the case under consideration is this. There is in the city of Brooklyn a street known as Flushing avenue, which by an act of the legislature passed May 13th, 1846, is declared to be a public street. The public interest and convenience, it seems, demanded that it should be graded and improved from Hamden-street to Clermont avenue, to fit it for the public use. Proceedings were accordingly instituted by the common council, under the act of incorporation for that purpose. The necessary notices were published, contracts were made, and the work was either completed or rapidly progressing, at the time the writ in this cause was issued. Two of the city assessors, acting under authority given to them by the common council, ascertained the expenses of making the improvements, and made what is denominated a “just and equitable assessment thereof, upon and amongst the owners and occupants of all the lands benefited thereby, in proportion to the amount of such benefits, and the estimated expense thereof.” The written report or assessment bears date the 27th day of June, 1848, is signed by the assessors, has been filed in the proper office, and confirmed by the common council, and the proceedings to charge the lands are thus made perfect and complete. The expenses are ascertained to be $>20,330,25, and are apportioned—not upon all the lands in the city of Brooklyn—but upon seventy-three lots of ground, upon, or immediately adjacent to the avenue, the property of seventeen different proprietors, and is to be collected from them in consideration of the benefits and advantages which such lands will derive from the improvement of the street. Such assessments are by the 40th section of the act, made a lien upon the "lands, and by the 42d section may also be collected from the goods and chattels of the owners and occupants; and for want of sufficient goods and chattels, the lands assessed may be sold by the common council, for the payment and satisfaction thereof. Thus if the proceedings are regular, and the statutes under which they are taken are of binding force, the proprietors may be divested of their title, and their property applied to the public use.' Brooklyn is a large and extensive city, with a population of some one hundred thousand inhabitants, and a corresponding amount of real and personal estate subject to taxation. It is conceded that the avenue is an open street or highway, dedicated to the public use, and that the money proposed to be taken by the proceedings is to be devoted solely to its improvement, for that purpose. I assume, for all the purposes of this inquiry, that the proceedings have been regular, and in conformity with the laws in regal’d to the city of Brooklyn, and I shall confine myself solely to examine whether under the constitution, this sum of §20,330,25 can be taken from the seventeen proprietors, in the manner and for the purposes proposed. The subject will necessarily involve the consideration of several distinct questions which I propose to look at in detail.

Is the money mentioned in the assessment to be regarded as property, within the meaning of the 6th section of the 1st article of the constitution 1 It is said that the word property, as there used, must have reference to lands, or something which savors of the realty, or articles of personal property, which enters into the construction of public works, and can not mean money collected upon an assessment. The term property has a known legal signification. The right of property is defined to be “ that sole and despotic dominion, which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” “The objects of dominion are things, as contradistinguished from persons. Things real are such as are permanent, fixed and immoveable, and which can not be carried out of their place, as lands and tenements ; things personal are goods, money, and all other moveables ; which may attend the owner’s person where-ever he thinks proper to go.” (2 Black. Com. 2,16.) The term property must therefore be taken to comprehend money, as well as every thing of which man may legally have the absolute and exclusive dominion. Put a limitation upon the word property, so as to exclude money, and the constitution must fall short of one of its principal ends. Money is a convertible medium, the highest kind of property, and the power to coerce its payment, and then to apply it to the construction and improvement of a public work, is as strong an example as can be given of private property taken for public use. “ Private property is taken for public use when it is appropriated to the common use of the public at large. A stronger instance can not be given, than that of a lot of an individual in a city converted into a street ;■ the former owner has no longer any interest or control over the property, but it becomes the property of the public at large, and under the control of the public authorities.” (Opinion of Ch. Justice Savage, 15 Wendell, 374.) The money, therefore, mentioned in the assessment for grading Flushing avenue, must be deemed property, within the meaning of the last clause of the 6th section of the 1st article of the constitution.

It was said upon the argument, that an assessment for grading and improving a street was not a proceeding to take private property for public use; but a legitimate exercise of the taxing power. Taxes and assessments are, in common language, synonymous terms ; oftentimes used to express the same idea. Our statutes speak of the assessment and collection of taxes, the equalization of the assessments, and the correction of the assessment rolls. And these expressions are used in reference to the general system of taxation, which obtains throughout the state. Our present business is to deal with things, and not with mere words; and it will be found upon examination, that there is little or no analogy between taxes, in the legal and political sense of the word, and assessments or charges imposed upon lands for benefits to result from public improvements. “Taxes in free governments are usually laid upon the property of citizens according to their income, or the value of their estates. Tax is a term of general import, including almost every species of imposition upon persons, or property, for supplying the public treasury, as tolls, tribute, subsidy, excise, impost or customs.” It is also “ a sum imposed on the persons and property of citizens, to defray the expenses of,a corporation, society, parish or company; as a city tax, a county tax, a parish tax, or the like.” Free government is the offspring of civilization, and its chief excellence consists in the just and equal distribution which it makes of its burdens and benefits, and the protection it throws around individual property and individual liberty. Conspicuous amongst the conflicts between the crown and the people, is that, in regard to the power of taxation. Protracted from the reign of King John to the time of the expulsion of the house of Stuart, it terminated in the permanent ascendancy of that maxim—immemorial in the fundamental law of England—that taxation must proceed from the people themselves. History unrolls her ample page to little purpose, if the oppressions of that age can be repeated in this; and taxation select as the subjects of its exactions, classes or individuals, in exclusion of the masses, upon the plea that they are profited by the public expenditures. Chief Justice Marshall, in McCullough v. The State of Maryland, (4 Wheat. 428,) speaks in this wise: “ It is admitted that the power of taxing the people, and their property, is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security to be found against the abuse of this power, is the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their government a right of taxing themselves and their property; and as the exigencies of the government can not be limited, they prescribe no limit to the exercise of this right, resting confidently on the interest of the legislator, and the influence of the constituents over their representatives, to guard them against abuse.” It will be seen, that the legitimate object of a tax is to supply the public treasury, or to meet some public exigency. It is imposed by the representative body, and falls upon the persons or the property of the constituents, equally; and the security against its abuse, is found in the mutual interests and mutual relations of both. In these concomitants of taxation, street assessments are wanting. They are imposed, not to supply the public treasury, or to meet a public exigency, but to obtain remuneration for a real or pretended benefit. They are not imposed upon the persons of the inhabitants of a city, or town, or village, established by law for certain purposes as a local "sovereignty, generally, nor upon their property equally, but upon the lands which, in the opinion of the assesssors, are enhanced in value; and the only security against injustice and oppression, is taken away. The true rule, I apprehend, is thus laid down by Chief Justice Robertson, in Sutton’s heirs v. the City of Louisville, (5 Dana, 28.) “ A common burden should be sustained by common contributions ; regulated by some fixed general rule, and apportioned according to some uniform ratio of equality. Thus, if a capitation or personal tax be levied, it must be imposed on all the free citizens equally and alike. Or if an ad valorem or specific tax be laid on property, it must bear equally, according to the value or kind, on all the property, or on each article of the same kind owned by every citizen.” The opinion of Mr. Justice Beardsley, in Stryker v. Kelly, (7 Hill, 9,) is an authority in favor of the doctrine that assessments for benefits fall within the legitimate exercise of the taxing power. His authorities, however, do not bear him out in that position; and his reasons evade the real question. He quotes the case of Livingston v. The Mayor of New-York, (8 Wendell, 101,) to which I will refer hereafter, and Beekman v. The Saratoga and Schenectady Railroad Co., (8 Paige, 45,) and says : “ Upon the assumption that the opening of the avenue would enhance the value of his property, a charge was imposed upon it to pay the expenses thus incurred. This was local taxation for a local purpose, and falls within the legitimate exercise of the taxing power. In towns, individuals are taxed, to make and repair the town highways, and in cities, to grade and pave streets. Each town has its local tax for town expenses, as has also each county to meet county charges. These are modifications of the taxing power, and quite as obnoxious to the constitutional objection raised, as is the assessment of lands benefited by the opening of a street to meet the charges for such an improvement.” If the learned justice had furnished us with a single instance of local or general taxation, where a tax is levied upon a few individuals in exclusion of all others, his argument would have been more to the purpose. Towns and counties are severally charged with their own expenses, and in this respect stand upon terms of perfect equality. But town, county and state taxes are assessed and collected in one proceeding under general laws, extending over the entire state, and are imposed upon all real and personal estate, the value of which is ascertained and equalized in the assessment rolls with just precision, so that all shall contribute in just proportion to the public exigencies. For as Vattel wisely says, “ the expenses of the state ought to be supported equally, or in just proportion. It is in this as in the throwing of merchandise overboard, to save the vessel.” “ The citizens,” writes another commentator, “ are entitled to require that the legislature itself shall cause all public taxation to be fair and equal, in just proportion to the value of the property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed.” That counties and towns are chargeable with their own local expenses, and for some purposes are separate collection districts, is for the convenience of the internal administration, and in no wise affects the primary law of taxation. Even the highway tax is imposed by general laws, and aims at the most exact equality. Every male inhabitant above the age of 21 years, is to be assessed at least one day, and the residue is to be apportioned upon the real and personal estate of the inhabitants, as the same shall appear on the last assessment roll, and upon the lands of non-residents. The school tax follows the same rule. These modifications of the taxing power proceed upon the principles of justice and equality, which lie at the foundation of just government, whatever may be its form. They aim at a fair distribution of its burdens amongst those who enjoy its advantages. The instances of the exercise of the taxing power cited in Stryker v. Kelly, as authority for the rule there laid down, in my judgment fail to answer any such purpose. To seize upon the property of any given class of individuals, and convert it to the public use, in the opening or grading of a public street, or in the construction of any other work of public improvement, is an exertion of power which derives no support from the usage of the government in regard to other modes and subjects of taxation, and if it can be maintained in the face of the constitutional objection, it can not be as a legitimate exercise of the taxing power.

The statute of the 25th Edw. 1, provided that “lío tallage or aid shall be taken or levied by us or our heirs in our realm without the good will and assent of archbishops, bishops, earls, barons, knights, burgesses, or other freemen of the land.” Lord Coke has the following note upon this statute, in his 2d Institutes, 532. “ Tallagium or tailagium, coming of the French word tailler, to share or cut out a part, and metaphorically is taken when the king or any other hath a share, or part of the value of a man’s goods or chattels, or a share or part of the annual revenue of his lands, or puts any charge or burden upon another: so that tallagium is a general word and doth include all subsidies, taxes, tenths, fifteenths, impositions or other burthens or charges put or set upon any man, and so is expounded in our books : here it is restrained to tallages set or levied by the king or his heirs.” The statute of the 34th Edward 1st also enacted, that “ aids, tasks nor prizes should not be taken but by the common consent of the realm and for the common profit thereof.” And the same writer says of this provision that it “ gave great satisfaction to all, for hereby it enacted that every aid and task and other taking must have two special properties, the One in the creation, viz. that it be given by the common consent of the whole realm in parliament—the other in the execution, viz. that it be given and employed for the common benefit of the whole realm, and not for private or other respects.” In The matter of the Mayor &c. of New-York, (11 John. 77,) several churches—under the statute which exempts church property from taxation—claimed to have their lots exempt from assessments for opening and improving streets, and upon the question whether such assessments were to be regarded as taxes, the court say “ The word taxes means burdens, charges or impositions, put or set upon persons or property, for public uses, and this is the definition which Lord Coke gives to the word talliage. (2 Inst. 532.) And Lord Holt, in Carth. 438, gives the same definition, in substance, of the word tax. To pay for the opening of a street in a ratio to the benefit or advantage derived from it, is no burden. It is no talliage or tax within the meaning of the exemption.” In Bleeder v. Ballou, (3 Wend. 263,) the defendant had covenanted to pay all taxes, charges and impositions, and one point was whether an assessment for paving a street was a tax which the defendant was to pay under the covenant, and the court say, “ There is no doubt that the assessment in question was not a tax, that being a sum imposed, as supposed, for some public object.” Sharpe v. Spier, (4 Hill, 76,) was an action of ejectment for lands in Brooklyn. The defendant set up a title under an assessment sale, for making a well and pump in Willow-street, and the question was whether an authority given to sell lands for every description of taxes, was also an authority to sell for assessments for city and village improvements. Justice Bronson, in his opinion, uses this language : “ How the first remark upon this section is, that it only authorizes the sale of lands for the payment of a tax ; and although it extends to a tax of every description, still it includes nothing but a tax of some kind. Our laws have made a plain distinction between taxes, which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city and village improvements which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improve-meats.” The case in the 11th Johnson’s Reports was decided in January, 1814, and that of Sharpe v. Spier in January, 1843; and thus we see that for a period of nearly thirty years anterior to the case of Stryker v. Kelly, this court has repeatedly repudiated the idea that an assessment like that for grading Flushing avenue, could be regarded as a lawful exercise of the taxing power.

The sixth section of the first article of the constitution provides, that no person “shall be deprived of life, liberty, or property, without due process of law.” And the inquiry now occurs, whether the proceedings to take away the $20,330,25, from the persons named in the assessment, are the “ due process of law” referred to. Happily for us we are no longer left in doubt as to the legal import of the words “ due process of law.” The principle to which these words refer was first embodied in the great charter, which “ has declared that no freeman shall be disseised or divested of his freeholds or of his liberties, or free customs, but by the judgment of his peers, or by the law of the land. And by a variety of ancient statutes, it is enacted that no man’s lands or goods shall be seized into the king’s hands against the great charter and the law of the land. And that no man shall be disinherited, nor put out of his franchises, or freehold, unless he be duly brought to answer, and be forejudged by course of law; and if any thing be done to the contrary it shall be redressed and holden for none.” (1 Black. Com. 138.) In Taylor v. Porter, (4 Hill, 140,) Mr. Justice Bronson has given a judicial exposition of the words “ due process of law,” as they are used in the sixth section of the first article of the constitution, which few will venture to gainsay. It is this: “The words due process of law,’ in this place, can not mean less than a prosecution or suit, instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property. It will be seen that the same measure of protection, against legislative encroachment is extended to life, liberty and property. And if the latter can be taken, without a forensic trial and judgment, there is no security for the others.” He quotes 2 Kent's Com. 13, 2 Just. 45, 50, 10 Yerger, 49, and Hope v. Henderson, (4 Dev. 1,) in which latter case it is said that “ the law of the land” in bills of rights does not mean merely an act of the legislature; for that construction would abrogate all restriction on legislative authority. The clause means that statutes which would deprive a citizen of the rights of person or property, without a regular trial, according to the course and usage of the common law, would not be the law of the land, in the sense of the constitution.” In an assessment upon lands for the benefits or enhanced value to result from the opening, grading or paving a public street, or for any other work of public improvement, no suit is instituted or prosecuted, according to any of the known forms or solemnities, and there can be no forensic trial and judgment, and therefore it is a proceeding not within the intent and meaning of the words “ due process of law.” No effort is made to disguise the true character of the proceedings in this case. They make no pretensions to the dignity of “due process of law.” Nor do they profess to regard the money, which it is their object to collect, as a tax. But the directions to the assessors are, “ to apportion the estimated expense for grading Flushing avenue from Hampden-street to Clermont avenue, and make a just and equitable assessment thereof, upon and amongst the owners and occupants of all the lands and premises benefited thereby, in proportion to the amount of such benefit, as each shall be deemed to acquire by the said improvement.” It is a remarkable feature of such like assessments, that the measure of the enhanced value of the adjacent lands is the exact measure of the cost of the improvement, whatever that may happen to be. In the present case the enhanced value is set down at $20,330,25, because that is the cost of the improvement; and had its cost been ten times that sum, no doubt the tendency of the enhanced values would have been upward, until they reached a corresponding amount. The proceedings concede that there is a binding obligation to award compensation for the property taken, and therefore the ingenious and specious contrivance that the enhanced values shall advance pari passu with the expenditures. This brings qs to consider the only remaining question, to wit, whether the enhanced value of the lands assessed is just compensation, within the meaning of the latter clause of the sixth section of the first article of the constitution.

I have already noticed the case of Livingston v. The Mayor of New-York, where the chancellor held the affirmative of this proposition. He had occasion, he says, to examine it, in Beekman v. The Saratoga and Schenectady Railroad Co. and there came to the conclusion that the objection there taken to this mode of compensation was unsound. The latter case is reported in the 3d Paige, and indicates no opinion as to the sort of compensation demanded by the constitution. So that we are left without authority for Livingston v. The Mayor of New-York, except such as may be found in the reasoning of the chancellor. “ The owner of property,” he says, “ is entitled to a full compensation for the damages he sustains thereby; but if the taking of his property for the public improvement is a benefit rather than an injury to him, he certainly has no equitable claim to damages.” This may be true as an abstract proposition, but it evades the point in dispute. The question is not one of equitable offset, or of equitable cognizance of any kind. The right to a full and adequate compensation for property taken for public use, depends upon no equities which may possibly grow out of the purpose to which it may be applied, but upon strict right. The mandate of the constitution is not to adjust the equities, but to make just compensation. “ Besides,” proceeds the opinion, “ it is a well settled principle that where any particular county, district, or neighborhood, is exclusively benefited by a public improvement, the inhabitants of the district may be taxed for the whole expense of the improvement, in proportion to the supposed benefit received by them.” Where shall we find the record of this well settled principle ? Where, or by whom, was it first engrafted upon the written or unwritten law of the land? Which of those magnificent and costly public yvorks that adorn the state of Hew-York, and mark the genius and enterprise of her people, owe their construction to the application of this principle? In which of the numerous counties, or toypg, or neighborhoods of the state has the expense of erecting, or maintaining, public buildings, or other public improvements, been imposed upon property in the vicinity, and adjusted upon the rule of supposed benefits ? The report of the case referred to, gives us no information. A rule of action may be said to be well settled, when it has the sanction of long established usage, or the recorded judgment of the tribunals of justice, and does not conflict with some other rule of equal or paramount authority; but unsupported by such evidence, its authenticity may well be doubted.

The measure of compensation in benefits or enhanced value, if it obtains at all, must apply as well to money assessed and collected to grade and make a public street fit for travel, as to the Lands over which the street runs. Both the lands and the money are taken for the public use, and if compensation must he made for the one, so it should be for the other. It has been settled by a series of decisions, that the right of eminent domain may be exercised either directly by the agents of the government, or through the medium of corporate bodies, in all cases of public improvements from which a benefit would result to the public. Railroad, plankroad, canal and turnpike incorporations, acquire property against the will of the owners, under this modification of the right of eminent domain, upon making the just compensation provided by the constitution; when not made by the state, it shall be ascertained by a jury or commissioners appointed by a court of record; but in regard to the compensation itself, it is the same, whether the property is taken by the state for an arsenal or a dock, by a corporation for a railway, or a municipal body for a public avenue. If the compensation may be made in benefits, in the one class of cases, so it may be in the other; and those who maintain that a municipal corporation may take private property to make or grade a public avenue, and then make compensation in benefits, must also make up their minds to maintain that a railroad or plankroad incorporation may do the same. The prohibition against taking private property for public use without just compensation, is general and universal in its application. It recognizes no exceptions; and what is just compensation must he measured by the actual value of that which is taken, at the time it is taken, and not by the uses to which it is to be devoted.

Six years after the decision in the case of Livingston v. The Mayor, &c. of New- York, the question again came up for review in the court of errors, in Bloodgood v. The Mohawk & Hudson Railroad Co. (18 Wend. 9.) It assumed another aspect, and elicited opinions which recognize and respect the rights of property, and are in harmony with the principles of justice and the true spirit of the constitution. One of the principal questions discussed and decided was, at what time the property could be appropriated to the public use ; whether before, or not until after, the compensation was ascertained and paid. It will be seen that this inquiry involves the very question in controversy in this cause, and brought the court directly to reconsider the judgment given in Livingston v. The Mayor of New-York. For if benefits, or enhanced values, entered into and formed the whole or any part of the compensation, the only time when that sort of compensation could be rendered was after the property was appropriated, and the time when the work of improvement was completed. The court, after a careful and elaborate examination of the whole subject, “ declared and adjudged, that the legislature of the state has the constitutional power and right to authorize the taking of private property for the purpose of making railroads, or other public improvements of the like nature, paying to the owners of such property a full compensation therefor, whether such public improvement is made by the state itself, or through the medium of a corporation or joint stock company.” Chancellor Walworth, in an opinion marked with more than bis usual ability, says: “ I hold that before the legislature can authorize the agents of the state, and others, to enter upon and occupy or destroy, or materially injure, the private property of an individual, except in cases of actual necessity, which will not admit of any delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages or compensation ; and that he is not bound to trust to the justice of the government to make provision for such compensation by future legislation.” “ It certainly was not the intention of the framers of the constitution to authorize the property of a citizen to be taken, and actually appropriated to the use of the public, and thus compel him to trust to the future justice of the legislature to provide him compensation therefor. The compensation must be either paid to him, before his property is thus appropriated, or an appropriate remedy must be provided upon an adequate fund, whereby he may obtain such compensation, through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so.” Senator Edwards, in the same case, speaks in this wise: “ The power of taking private property for public purposes is at best an arbitrary power, and justified only by the law of necessity, and therefore should never be exercised without rendering promptly an equivalent to the individual sufferer.” Here is not one word in regard to equities, or the adjustment of equitable claims; nor is there any thing said touching compensation in benefits or enhanced values, which always depend upon future and uncertain contingencies ; but payment is insisted upon ; the equivalent is to be rendered promptly; the individual whose property is taken under the rigor of public necessity is spoken of as a sufferer and not as a beneficiary—he is not to trust to the uncertain justice of future legislation—and the compensation is to be actually paid, or secured upon an adequate fund, before the entry can be made, or the property appropriated. This just exposition of the rights of private property can not stand side by side with the law of compensation by benefits.

In England, where the authority of parliament is said to be supreme, the right of private property, like that of personal liberty, is held to be sacred and inviolable. “ So great, moreover, is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. All that the legislature does, is to oblige the owner to alienate his possessions, for a reasonable price; and even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform,” (1 Black. Com. 139.) The reasonable price here spoken of means an equivalent in money. (9 Dana, 114. 5 Id. 28. 7 Id 81.) “ The right to take private property for public purposes is one of the inherent attributes of sovereignty, and exists in every independent government. Private interests must yield to public necessity. But even this right of eminent domain can not be exercised without making just compensation to the owner of the property. And thus what would otherwise be a burden upon a single individual has been made to fall equally upon every member of the state.” (Justice Bronson, in 4 Hill, 148.) These sentences, like many others from the same pen, are no less remarkable for their truth than for the simplicity and force with which it is expressed; yet the last of them is utterly pointless and untrue, if compensation can be made upon the rule of enhanced values. The burden of a public improvement may be shifted, by proceedings like those for grading Flushing avenue, from one person to another, or from more than one person to any other number of persons, more or less ; but it is not “ made to fall equally upon every member of the state.” Whatever shifts or changes are made—whoever may be paid, and whoever is made to pay, the moment the avenue or public improvement is completed, the absolute and exclusive title therein vests in the public—the work of converting private property to public use is consummated, and the public have made no compensation, and paid nothing for it. The lands upon which it is constructed, and the money expended to fit it for the public use, are the fruits of individual contribution, after all. Compensation signifies amends, recompense, or remuneration. And there must be some person to make or render, as well as another person to accept and receive. The restoration of the whole of a given quantity of property, wrongfully taken away, whether it be the property of one man or that of ten, may sometimes be taken as a compensation for the wrong done; but the restoration of a part certainly would never be so esteemed. So long as the wrongdoer retains a part, so long the demands of justice would remain unsatisfied. Just compensation for property wrongfully taken, or for property taken under the pressure of public necessity, moans nothing less than the prompt restoration of every thing taken, or its equivalent rendered in something which the taker has a right to bestow. Where the lands of any given number of persons arc taken or assessed to provide a municipal corporation with the means of dedicating, grading and paving a public avenue, for public use, unless the body corporate pays something out of the public treasury, or parts with some portion of the public property, as an equivalent, by what process of reasoning can it be said to make compensation 1 That the owners of lands occupied for the avenue have been compensated out of the moneys realized from an assessment made upon other lands in the vicinity, shifts the burden from the persons or property of one class to those of another, but it does nothing more. The obligation of the public to award compensation according to the constitution remains the same. The persons originally entitled to he compensated may be lessened or enlarged in number, or other persons—by means of the assessment and the collections made under it—may he substituted in their place, but until the .common fund, or the common property of the public, is applied to extinguish the debt due for the value of the property taken, the -obligation to make compensation has undergone no change, but remains in all its original force. The demands of the constitution are not satisfied by coercing one class of proprietors, to compensate another class; or by taking the lands of some and the money of others—no matter how equitable may be the rule of apportionment—and appropriating both to the construction of works designed exclusively for the public use, and of which the public have the exclusive title. If the language of the constitution could possibly be construed into the recognition of any thing less than a compensation in money made by the public from the public treasure, there would still remain the difficult task of showing that the medium in which the proposed remuneration is to be made, rightfully belongs to those upon ivhom the obligation to make just compensation rests. Benefits and enhanced values are not always the concomitants of newly opened streets, or costly public avenues. Examples are not wanting to show that similar undertakings, skillfully designed and carefully constructed, have been followed by depreciation in prices and irreparable injuries. The public can assert no just claim to the one and not at the same time incur the hazard of the other. I am of opinion that the assessment should be vacated and set aside.

Barculo, J.

Having heretofore, in the case of The People, ex rel. Post, v. The Mayor, &c. of Brooklyn, (6 Barb. 209,) given my views at length on the subject of the constitutionality of laws authorizing assessments for benefits, and having, by time, reflection and examination, become confirmed and strengthened in the doctrine there advanced, I shall not on this occasion go over the ground again, but confine myself to a brief consideration of the principal point made by the defendants. It is presented to us in these words :

“ Assessments for grading and regulating a street are not contrary to the constitution of the United States, or the constitution of the state of New-York. They are local taxes for a limited public purpose, imposed by the sovereign power, whose authority to lay them is expressly recognized by the constitution, and has been too long admitted to be questioned at this late day.”

The first answer that suggests itself to this proposition is, that there is no such thing known to the law, as “ local taxes for a limited public purpose,” in the sense claimed by the learned counsel. We all understand what is ordinarily meant by the phrase local taxation for a local public purpose. It is applied to taxes assessed upon a county, for erecting public buildings, and defraying other county expenses, or upon a town, or city, or village, or school district, for the legal public purposes of such locality. But there is a fundamental principle which lies at the foundation of, and which must be strictly adhered to in all such cases of, local taxation. The tax must be coextensive with the district, or in other words, it must be laid upon all the property in a district which has the character of, and is known to the laxo as a local sovereignty for certain purposes. Thus there is no power which can assess upon a few individuals the expense of a new court house for the use of the county. The assessment must be laid upon the individuals or property of the whole county. Nor can a park be bought and laid out, in a village, and the expense thereof be levied and collected of the adjacent owners, as is too frequently the case. This is not local taxation; it is robbery. Now in the case at bar this principle is plainly and palpably violated. The attempted assessment is not laid upon any local community. It is all laid upon less than twenty estates in a large city ; and one of the relators is assessed over ten thousand dollars, or nearly half of the whole amount.

The second answer to the proposition of the defendants’ counsel is, that the assessment in question is not a tax. The very essence of a legal tax requires that it should be apportioned equally, i. e. according to principles of just equality, upon all the property in the district to be affected. The amount of the sum is governed by the wants of the public, and has no reference to the amount of pecuniary benefit received by the taxpayer. In the language of Judge Cowen, (24 Wend. 69,) the argument of the counsel “ confounds two distinct legislative powers; a simple power of taxation, with the power of taking private property for public use. The former acts upon communities, and may be exerted in favor of any object which the legislature shall deem for the public benefit. A tax to build a lunatic asylum may be mentioned as one instance. If the power to impose such a tax were to be rested on the ground of individual pecuniary benefit to each one who should be called on to contribute, it is quite obvious that it would not be maintained a moment.” But in the case .before us the assessment is rested solely upon the ground of “ individual pecuniary benefit.” The assessors, in their report, say they have “ made a just and equitable assessment thereof upon and among the owners and occupants of all the lands and premises benefited thereby, in proportion to the amount of such benefit and in the language of the learned judge, which I most heartily adopt, it can not be “ maintained a moment.”

I readily grant that the legislature can authorize the corporation of Brooklyn to make the improvement in question, and to levy and collect a tax to defray the expenses. The power would rest upon the same basis as the authority to build the city hall in which we hold our courts, or any other of the public buildings of the city; and the cost would be paid by the same means—a tax upon the city. This is local taxation for a local public purpose. But the legislature has no original power, nor can the corporation have any derivative power, to select certain individuals and compel them to pay the expenses of any public improvement, upon the pretense that they are especially benefited. To call such an extortion a local tax, is a gross perversion of language, and a doctrine which can not be “ maintained a moment.”

I have heard this question twice discussed by counsel of. great ingenuity and ability; I have given it all the consideration of which I am capable, and I can freely say that I have never yet heard, seen, nor been able to discover, any thing approaching a sound argument to show that this mode of assessing for benefits could be brought within any legal principle of taxation.