Argument in favor of the constitutionality.

being assignable, he could, by receiving and selling it, realize its then present cash value. To take land in kind was one thing, and to take scrip was quite another. If the contractor took land, he became a purchaser, and acquired the exemption. But if he took scrip, he did not become a purchaser, and did not acquire the exemption. To hold that the State, in the offer to sell her swamp lands, as expressed in the fourteenth section of the act of 1851, proposed as an inducement to contractors to take scrip, that the lands which they might afterwards purchase with it should be exempt from taxation, would not only do violence to a settled rule of construction, which is, that privileges and exemptions granted by the State shall be strictly construed, and that nothing shall be held to have passed except what is clearly and explicitly granted, but would also be at war with what seems to us to be the plain reading of the statute.”

The fourteenth section was a gratuity or bounty offered to a small part of the community at the expense of the rest; and while it is true that those who availed themselves of it, by purchasing lands when it was in force, must have its benefits, yet those who did not can have no claim of that sort at all. They, at least, must take the law as they find it when they become the owners of swamp land by purchase from the State. They are not deceived. No faith has been broken. They are only called upon to contribute their mite to the support of a government which protects them and their property.

II. But supposing the fourteenth section had not been repealed, still the exemption in that section must be construed in reference to state and ordinary county taxes alone, and should not be held to embrace special or local assessments. Every exemption of property from taxation must be strictly received, and terms of ambiguity in the grant must operate against the grantee, and in favor of the public. In other words, nothing passes which is not clearly granted.*

It will be observed that the fourteenth section of the act of 1851 exempts lands taken up from "taxation." This term

* Bank v. Billings, 4 Peters, 561; Ohio L. & T. Co. v. Debolt, 16 Howard, 435.

Argument in favor of the constitutionality.

does not embrace special local assessments where the fund raised is expended for the improvement of the property taxed. Legislative sanction of such assessments is ordinarily procured by the action of the parties interested, and is widely distinguishable from taxation for governmental or public purposes.

In The State v. New Orleans Nav. Co.,* Judge Martin says:

"The words impost, tax, or duty, must be confined to the idea which they commonly and ordinarily present to the mind,-exactions to fill the public coffers, for the payment of the debt and the promotion of the general welfare of the country, not to a contribution provided to defray the expenses of building bridges, erecting causeways, or removing obstructions in a water-course, to be paid by such individuals only who enjoy the advantages resulting from such labor and expense."

The Ordinance of 1787 declared that

"All navigable waters leading into the St. Lawrence and Mississippi, and the carrying-places between the same, shall be common highways, and forever free, as well to the inhabitants of the territory as the citizens of the United States, or those of any other state that may be admitted into the confederacy, without any impost, tax, or duty therefor."

This provision was literally copied in the act of Congress of March 2d, 1805, and it was held in the case from which Judge Martin's remarks 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, was not a tax, or impost, or duty within the meaning of the act of Congress, or the ordinance from which it was copied.

Under a law of Louisiana, the owner of land on the Mississippi River was required to construct levees or embankments; and if the owner failed to construct or keep in repair

* 11 Martin, 309.

1

Argument in favor of the constitutionality.

his portion of the levee, the district inspector had the levee built or repaired, and assessed the cost upon the land of the delinquent proprietor. And in Crowley v. Copley,* this assessment was held not to be within the act of Congress, which exempted from State taxation all public lands of the United States for five years after sale by the government.

In The matter of the Mayor of New York,† certain churches insisted that their lots were exempt from assessments for opening, enlarging, or otherwise improving streets in the city of New York, made pursuant to an act of legislature, passed in 1813. The court said that "these assessments were intended and directed to be made upon the owners of lands and lots who might receive benefit and advantage' by the improvement. The exemption granted by the act of 1801 was in the general act for the assessment and collection of taxes; and the provisions of that act referred to general and public taxes to be assessed and collected for the benefit of the town, county, or state at large. The words of the exemption were, that no church, or place of public worship, nor any school-house, should be taxed by any law of this State. The word taxes' meant burdens, charges, or impositions put or set upon persons or property for public uses, and this was the definition which Lord Coke gives to the word talliage, and Lord Holts gave the same definition, in substance, to the word tax.' To pay for the opening of a street, in a ratio to the benefit or advantage derived from it, was no burden. It was no talliage or tax, within the meaning of the exemption."

In Northern Liberties v. St. John's Church || the same question arose, and the Supreme Court of Pennsylvania put the same construction on the word "tax," and held that the church property, though exempt from taxation under the general revenue law, was nevertheless subject to local assessments, appropriated to the improvement of the property itself.

* 2 Louisiana Annual, 329.

2 Institutes, 532.

13 Pennsylvania State, 104.

† 11 Johnson, 80.

? Carthew, 438.

.

Opinion of the court.

The same principle has been decided by the Supreme Court of Arkansas, in Washington v. The State,* and by the highest court in Missouri, in Egyptian Levee Co. v. Hardin.†

The cases, in short, show the uniform construction which the judiciary have put upon the terms, "taxes," and "taxation," as employed in their constitutions and revenue laws. And when we apply the rule, already alluded to, that exemptions must be strictly construed, it becomes clear that the fourteenth section of the act of 1851 did not intend to exempt swamp lands from special local assessments, to be expended for the benefit of the lands themselves, by making and repairing levees to protect them; and if the levee act of 1857 has that object in view only, it is obnoxious to no constitutional objection, whether repealed or unrepealed, and the obligation of no contract was impaired, because, as to that, no contract ever existed.

The CHIEF JUSTICE delivered the opinion of the court, and after stating the case, proceeded:

The first question which requires consideration in the case before us is: Was the levee tax imposed in violation of any contract between the State and the United States?

It is not doubted that the grant by the United States to the State upon conditions, and the acceptance of the grant by the State, constituted a contract. All the elements of a contract met in the transaction,-competent parties, proper subject-matter, sufficient consideration, and consent of minds. This contract was binding upon the State, and could not be violated by its legislation without infringement of the Constitution.

The contract required the State to appropriate the lands granted to the purpose of reclaiming them. The lands themselves might be conveyed to the levee contractors for work performed, or the contractors might be paid in money or in scrip representing land. If the State, therefore, after acceptance of the grant, and without applying the lands, or their † 27 Missouri, 495.

* 13 Arkansas, 752.

Opinion of the court.

proceeds in money or scrip to the purpose of reclamation, had sought, by means of taxation, to compel purchasers to pay for the levees and drains necessary to reclaim their land, it would certainly be difficult to say that the contract was not violated. But the case before us hardly comes within this description. The allegation and proofs do not show that the State had not applied all the lands granted and their proceeds to the making of levees and drains before proceeding to impose the special tax; and if this was done, and the work of reclamation remained still incomplete, the imposition of such a tax for the completion or preservation of the work, cannot be regarded as inconsistent with the obligation of the contract between the State and the United States.

The next and only remaining question is: Was the levee tax in violation of any contract between the State and the complainant?

It seems quite clear that the act of 1851, authorizing the issue of transferable land scrip and its receipt from locators of land in payment, and the provision in the fourteenth section, offering inducements to purchasers and contractors by exempting from taxation, for ten years or until reclaimed, all the swamp or overflowed lands, constituted a contract between the State and the holders of the land scrip issued under the act.

When the scrip was issued to a contractor, it represented a certain quantity of land untaxable for ten years, unless the land should be sooner made fit for cultivation. When transferred to another person, it represented to him a like quantity of like land. The contract of the State was to convey the land for the scrip, and to refrain from taxation for the time specified. Every piece of scrip was a contract between the State and the original holder and his assigns. Now what was the effect of that contract when made? Did it not bind the State to receive the scrip in payment for swamp land, exempted for a limited time from taxation? The scrip, if not receivable for lands, was worthless. To annul the quality of receivability was to annul the contract. But the