Arkansas true Democrat., 1860-02-15

no rd tho nroyisions of that act refer to gene raI and public taxes to be assessed and coliec'eo for the benefit of the town, county or State ~ The words of the exemption are, that no church or nl,ca of public worship, nor any schoo-ho !. shopld be taxed by any law of this State" The ,ord {. tares'' means burdens. charges, or lmposi .;, mt ar set upon persons or property Tor pup i ,,sar and this is the definition which Lord Coke er;ves to the word taiiage; C Inst 35a) ana Loru Holt. in Carth 43S, gives the same dehninonn sup stance. of the word ''tdr; lo pay ior 'ne open :r of street in ratio to the benefit or dvantage from it. is no burden. IL is no talllage or tax within the meaning of the exemPtion'
 Nortbern Liberties, etc. rS. S. J0hns ChuTch, , Hor. lO4, the same question arose. anu the SUI nreme court of Pennsylvania put the same COT cor strnction on the word tax and held tLa1 the IiuI1h nropertv, though exempt from taAa'on' uiuei 'ie Pp"noi ravenne law was nevertheless subject to 2iaaaI assessments appropriated to the improvement nf tbe propertv itself. The court said: laXes ono . nnblc imposition levied by authority or the government, for the purpose or carryihS ch '"' Government in all its machinery and operatlohs- They are imposed for publlc purposes w whereas municipal charges are o1teh TOT .ii1 -.,-lt VI holders on particular street, ana the asSessien'i as in this instance, induced by the request, made known according to the charter, ot majority of the inhabitants" 1 e,, rs Nep OrLeans Nap. Co. II Mdrt. 3O9, :" l heSe words impost, tax or duty,) must be confined 10 tho ;del which they commonly and ordinarily pre- at in the mod exacions to fill the public cotcrs, for the pavment of the debt, and the promotion ot tho general welfare of the country not to con trjbution provided to defray the expenses ol buiid ng.brdees erecting cause-ways or removing oo- structions in watercourse to De pald py such lh- dyiduals only who enjoy the advantages feSuluhS from such labor and expense" The Ordinance or l7S7 declared that ' all the naviSabie waters iedc inc into the St. Lawrence and Mississippi, and the carving places between the same, shall be common highways and forever tree as well to tne lnhaol- tants of the territory as the citizens of the united States or those of any other State that may De ad mtted into the cOntederacy, without any WpoSt, tax or duty therefor"
 This proyision was literally copied in the act of Congress of March ,, 1895, and it was held in the case from which Judge Martin sremarks are quoted, that the charter of the New Orleans Navigation Company, which authorized a tax to be levied on vessels navigating the Mississippi for the purpose of raising a fund to be applied to the improvement of that navigation, not tax or mpost or duty, within the meaning of the act of Congress or the ordinance from which it copied. The same principle was decidedin Cratctey rS. Coptey, LomS Ann 329 Under a law of that State, the owner of land on the Mississippi, was required to con struct levees or embankment and if the owner failed to construct or keep in repair, his portion o the levee an officer called the district inspector, had the evee built repaired and assessed the cost upon the bond of the delinquent proprietor. This assessment was held not to be within the act ot Congress, which exempted from State taxation all public lands of the United States for five years after they were sold under the direction of Congress.
 These and other authorities which might be cited show the construction which our sister States, through the judiciary, have put upon the term ''taxes" as employed in their constitution and re- venue laws and it is not reasonable to suppose ethat the framers of our constitution intended to use the ;p I; in at instrument.
 Nor are the levees provided for by the act of 1th January -57, an internal improvement and local concern within the meaning of that clause ot the constitution last above stated. Those terms, as there employed, relate to public internal improve ments and local concerns for general county pur- poses-whch appertan to the county at large as d body potic-and not to improvements for special local purposes, where the funds expended in mak- ing the improv vemcnt, raised by assessments i'm posed only on the particular property improved None of these constitutional provisions apply to the exercise of the taxing power of the government in the form provided for by the act under con sderatiOn; and it follows as a consequence, that the power conferred the board of levee in spectors, [" to adjust the assessment and levy" of the tax "by hearing and deciding all questions" in relation thereto, legitmately conferred and by conferng such power, the legislature dld not constitute them court, seems to be supposed in the argument. There Is, as has been seen, no constitutional provision requiring such assessments to be made and enforced through the instrument tality of court and theEe is nothing in the nature oftaxation itself, in whatever form exercised which makes it ndispensably necessary that the acts of assessment and collection should be petormed un der the sanction of a judicial tribunal, Pdrhdm Decatur C0unty 9 Geo. 352; McCGrr0tt Ds. Weeks, Tenn. 2l3; Monroe GAS; Peters 669.
 The power of taxation and the mode and manner of exercising the power, in the absence of const- tutional restrictions, belong to the legislature. In the performance of their duties the board of in spectors acted therefore, as ministerial and not as judicial officers.
 But it is objected that by the 18th section of the act the decision of the board of inspectors, touch ing the matters confided to their jurisdiction, Is made final and concludes all further investigation as to the legality of the assessments-which, it is contendcd, is unconstitutional.
 If this were conceded, it would not destroy the validity of the whole act, because is well settled that one part of an act may be unconstitutional and void, and other parts of the act, not necessa- rially dependent on it, valid. Hence, those proyi sions of the act which authorize the assessment and collection of the tax would remain unimpaired, because not obnoxious to the objection; while so mucho the act as denies the right to test the le gaity of the assessments by judicial Investigation would be declared void. So that if this objection were well taken, it would only secure to the appel lant the right to impeach the assessment for ille gahty-if any R Notwithstanding the decision of the inspectors.
 The construction contended for however, is not a sound one The act, after stating what the in- spcctors shall hear and decide provides that their decision thereupOn shall be fnal.' From this do not understand that the legislature intended close the door of the aganst party whose land had been illegally assessed. Suppose the land of is assessed when 1t is not liable to taxation, by reason of an exemption, or of it's not lying in ~the alluvial district He appeors before the board sof nseecors-rasos the question, and it isdecided against him. Was it the design of the legi stature,
 in such a case to deny A the right to apply to the courts for relief? But suppose the land is sold for the taxes assessed and the purchaser brings eject ment. Was it intended that A should be precud- ed from setting up the llegality of the assessment defence to the actOnl The power of the le gslature so to enact has been grlvely doubted.- But whatever may be the power of the legislature, the moral injustice of such a law would be so mon- strous, that such construction should not be put on the statute in question, if, by strict construc- tion, confined to it's very words, one more just and reasonable can be adopted. BlackreH on Tar Titles ?. 102-3-4, and authorities there cited.
 True, the decision of the board of inspectors in the matters which they are authorized to hear and determine, is declared to be final. But this is to be understood in that sense which makes 1t final so far only as to conclude further investigation by the ministerial officers acting in the assessment and collection of the tax. The decision of the board is pronounced in ministerial proceeding, and so far regards its conclusiveness, must be under. stood to have reference proceedings of that char acter-and not to judicial proceedings It is no where expressly provided in the act, that a party, feeling himself aggreved in the assessment of his
 land, shall be debarred the privilege to prosecute defend his rights in the courts; and will not ex- tend, by implication, the operation of the act and thus impute the legislature the intention to ex- ercise power so arbitrary and unjust.
 By express provision of the act of 7th of Jan uary 1857, such lands only taxable for State rcvenue made subject to the special assessments provided for by that act and this involves the uth CT question, whether, under our revenue laws, the lands of the appellant subject to taxation for State purposes He affirms that they are not, and relies for their exemption on the l4th section of an act of the legislature passed on the 9th January, 1851, to provide for the reclamation of the swamp and overfowed lands of the State.
 By this act the swamp land commissioners were required to let out the making of leyees and drains by contract, at stipulated price per cubic yard to the lowest bidders; payment for which was to be made in the lands reclaimed, or the proceeds of the sales thereof, at the price previously fixed by the commissioners, and the contractor might at his op tion, demand and receive in payment the land re cauned Tn klnd or land scrip representing quarter section tracts-which scrip transferable by as signment, and might be located on any portion ol the unsolicited swamp and overfowed land And | naNfNsp. ll IL