# Linford v. Ellison/Dissent Harlan

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
155 U.S. 503
Linford v. Ellison
Mr. Justice HARLAN, dissenting.
I am of the opinion that this court has jurisdiction to review the judgment below, and, consequently, that the writ of error should not be dismissed.
We have jurisdiction to review the judgment or decree of the supreme court of a territory, without regard to the sum or value in dispute, in any case in which is 'drawn in question the validity of * * * an authority exercised under the United States.' 23 Stat. 443, c. 355.
The city of Kaysville, Utah, was incorporated and its territorial limits were defined by an act of the territorial legislature passed February 13, 1868. Laws Utah 1868, p. 8; 1 Comp. Laws Utah 1888, p. 427. That act provided that the city council 'shall have authority to levy and collect taxes, for city purposes, upon all taxable property, real and personal, within the limits of the city.' Section 7. Within those limits were the plaintiff's lands, part of a large body of what are alleged to be merely 'agricultural lands,' outside of the platted part of the city, and upon which, it was contended, taxes for city purposes could not be legally imposed.
Certain taxes were levied on the plaintiff's lands by the municipal corporation of Kaysville. The issue in the court of original jurisdiction was as to the liability of those lands for taxes assessed by that corporation under the authority given by the territorial statute. That court found, as conclusions of law, that 'the organization of the city of Kaysville, including large quantities of agricultural lands which, at the time of its organization, could not be benefited by municipal government, was, at the time thereof, illegal and void, and that it now is illegal and void, as to the lands which cannot by any possibility be benefited by municipal government'; that 'to impose tax upon such lands is contrary to that part of the constitution which provides that private property shall not be taken for public purposes without just compensation'; and that, the lands of the plaintiff 'being agricultural lands, to tax him would be to take his property without just compensation.'
The district court, therefore, held that the city of Kaysville 'had no authority to tax the lands and property of Mr. Ellison for municipal purposes.' It thus appears that the validity of the authority given by the territorial legislature, acting under the United States, to tax agricultural lands like those belonging to the plaintiff, was directly drawn in question and was passed upon by the court of original jurisdiction.
In the supreme court of the territory the judgment was affirmed. It is true that the findings of fact in that court differed in some respects not vital in the present inquiry from those made in the inferior territorial court, but they disclosed the real issue between the parties, and the judgment of the supreme court proceeded distinctly upon the ground that a tax upon agricultural lands for city purposes was invalid and void. This appears from the following extract from the opinion of that court: 'The questions involved in this case were fully considered and elaborated by this court in the case of Territory v. Daniels, 22 Pac. 159. The case involved the validity of a tax on agricultural lands for city purposes, and the tax was declared void. In that case, Zane, C. J., in delivering the opinion of the court, said that 'taxation for city purposes should be within the bounds indicated by its buildings or streets or alleys or other public improvements, and contiguous or adjacent districts so situated as to authorize a reasonable expectation that they will be benefited by the improvements of the city or protected by its police; that no outside districts should be included when it is apparent and palpable that the benefits of the city to it will be only such as will be received by other districts not included,-such as will be common to all neighboring communities.' We see no reason to doubt the correctness of that decision, and, as it is decisive of the point involved in this case, the judgment of the district court is affirmed.'
That the supreme court of the territory passed upon the validity of the territorial statute so far as it authorizes the taxation of agricultural lands for city purposes is made still clearer by an examination of the opinion in Territory v. Daniels, the decision in which was followed in the present case. In that case it was adjudged that the taxation of agricultural lands for city purposes was forbidden by the fifth amendment of the constitution, which prohibited the taking of private property for public use without just compensation. The court said: 'Inasmuch as it appears from the record in the case that the defendant resides and that his lands are situated outside of Moroni City, as indicated by public or private improvements, and beyond such contiguous or adjacent district as will be benefited by its municipal expenditure, the court holds that the territorial legislature had no power to subject his property to the burden of taxation for the corporate purposes of the city. The judgment of the court below is reversed, and the cause is remanded.'
The present case, then, is this: The legislature of the territory, exercising whatever authority it has 'under the United States,' passed a statute which embraced certain agricultural lands within the limits of Kaysville, and assumed to authorize that municipal corporation to tax them for city purposes. The action of the corporation and its officers is based upon the territorial statute, and is justified, if to be justified at all, only by its provisions. Plainly, therefore, there was 'drawn in question' the authority of the territorial legislature, acting 'under the United States,' to confer upon a particular municipal corporation the power to tax the lands in question for purely city purposes. No question was presented as to the mere construction of the statute. It is not disputed that the plaintiff's lands are within the limits of Kaysville, as defined by the act of the territorial legislature. It is conceded that the seizure of the plaintiff's wagon for the taxes on his lands was legal, if the statute of the territory was constitutional so far as it authorized taxes to be imposed on such lands within the defined limits of Kaysville as were agricultural lands, namely, lands outside of the platted part of the city, which did not receive the benefits of the city government. I submit that there is no disputed question in the case, except that which involves the constitutional power of the territorial legislature, acting under the United States, to authorize the imposition of taxes for city purposes on lands situated as are those of the plaintiff. The facts were agreed, and it is apparent that the parties intended to raise no question except as to the validity of the authority exercised by the territorial legislature in empowering the city of Kaysville to tax the lands here in question.
These views expressed by me are not at all in conflict with the decision in Railroad Co. v. Hopkins, 130 U.S. 210, 226, 9 Sup. Ct. 503. The validity of the act of congress referred to in that case was not drawn in question. The issue there was as to whether certain things were within or were authorized by the provisions of that act. The dispute was as to the construction, not the validity, of the act of congress. I cannot suppose that the Hopkins Case would have been determined as it was, if it had appeared that the authority of congress to pass the act referred to was drawn in question. Here there is drawn in question the validity of a statute of the territorial legislature, acting under the United States, which permitted the taxation of certain kinds of lands for city purposes.
It seems to me that if a case in a territorial court turns upon the validity of an act which is authorized by a statute of the territorial legislature deriving its existence and powers from the United States, and if that statute is itself drawn in question as being repugnant to the constitution of the United States, then we have a case in which is 'drawn in question the validity of * * * an authority exercised under the United States.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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