Indiana American. [volume] (Brookville, Ind.) 1865-1872, 1868-03-20

UHUHCc IL was Win Icicfchc0 W ehO piV-
curement of means with which to carry on
the machinery Of the government thus
created. For this purpose taxes were to
be levied according to this provision OF
the constitution. or assessments made-if
axes, according to uniform and equal
rate, and upon just valuatioh--if assess
ments upon uniform and equal rate, but
without reference to valuation.
In this connection it is well to consider
the fact that there is much reason why
this difference should be made between
assessment and taxation. Taxation is
based upon property, while assess
ments are not necessarily so. A
Poll Tax while called tax, is really
an assessment upon the person, and can
only be levied because il is an assess
ment. Valuation cannot be the basis of
Poll Tax, aud as taxes are to be upon
just valuation il could not be supported as
tax, while il can and maybe as an assess
ment for that is not required to be upon
just valuation. s.t s.-.s.t ,.-s.rl
In my judgment therefore when the
convention formed this constitution these
two modes Of raising revenue were de-
vised, taxation aud assessment, but the
revenues thus to be raised were for the
benefit Of the government thus created aud
for no other purpose whatever. Upon
this principle many of the decisions that
have been made in this State aud others
ought to be interpreted. For example
take all Of those cases in which cities have
made assessments, which have been held
to be constitutional city is n part Of
the State government, n municipal corpor
alton, to which the State has delegated eer
tain powers looking to the government Of
the people embraced within its territorial
jurisdiction that government is designed
to promote the general welfare Of the peo-
ple--large numbers being coigregated
together, thoroughlares are indispensable
for convenience of travel---se~ers and
drains are necessary TO promote the public
health and 50 on, These things are
part of the public police, and are of the
very essentials Of good government. The
courts might therefore we'll hold that city
being apart Of the government might
make assessments for tho purpose Of max.
ing streets, drains, &C. Aud so too il
might we'll be held that where the public
health requires H., assessments might be
made upon adjoining property for the pur.
pose oi draining ponds OF water as deei.
ded in the case Of Anderson vs.. The
kerns Draining Company, Oath lud.)
which is only principle upon which that
case was decided. ft
Now II Turnpike Company is in any.
wise connected with the State govern
ment, from any part OF IL, then assess.
ments such as are contemplated by this
act OF 1867 can be sustained, otherwise l
eannot sec how they can be. But Turn
pike Company is nothing but an artificial
individual, private corporation created
for the ends Of private gain. The terrific
ry occupied, the materials used, the toll
houses erected, everything used in con-
nection with it belong 10 the corporation
as an artificial individual. The public
has no right to use il except upon pay
ment forth use. Ii is essentially private
property in every particular. Ii cannot
be supposed that when this constitution
was framed aud adopted that il was in
contemplation to provide for tho finances
of this private artificial individual. See
Dronberger VS.. Reed, (ll Ind, 422 423 }
But il is urged that Turnpike is a mat
ter of public interest. So is railroad
aud it too may be used by the public upon
the very same terms that turnpike may,
by paying the company qaid proquo and
ii assessments can be made to build n
Turnpike why nota Railroad, cotton mills
or grist mills ct ia onne genus are of pub
lie utility. they furnish employment, mar
kets, and the necessaries of life, why not
form corporations aud make assessments
for these | only make these illustrations
to show that if the principle of this law is
sustained it extends the power of making
assessments to degree that certainly was
never contemplated. Turnpikes, rail-
roads, and tho like differ from streets and
drains, in that the former belong to pri-
vate individuals acting in corporate
capacity to promote private ends, while
the latter belong to the public, and con-
ssitute part of the public economy.
The conclusion to which | come here
after is that the finances Of these private
corporations were not in contemplation in
framing and adopting the constitution.
This constitutional provision was intend
ed as restriction upon Legislative ac-
ton, and the Legislature can enact no law
on the subject of taxes assessment 9TH
er than was contemplated by this proyi-
sion. See Bright VS.. Mcclellan township
(not yet reported.) This law having in
contemplation the finances of a private
corporation, not contemplated by the con-
stitution is violation of the constitution
in my judgment.
But the other provision quoted to wit:
SEC. 2l, ART. l. "No mans property
shall be taken by law without just COM
pensation, nor, except in case of the State,
without such compensation first assessed
and 'tendered," is of vital importance in
this case."
BY the law in question an assessment
is made upon property and the owner is
required to pay that assessment, If he fails
from inability or any other cause, his
property is sold and conveyed from him
to the purchaser. 1t is not the policy Of
law, to allow to be done by indirection
what cannot be done directly-and how
ever circuitous the route may be this Is
taking the o,cners property, and II SO un-
der the above provision he must be com
pensated. The word compensation means
nothing else than payment, and payment
is the hgsl currency of the country, not
in stock certificates such as is contempla-
ted by this law. But this payment must