
    EPHRAIM P. ELLISON, Respondent v. JAMES H. LINFORD, Jr., Appellant.
    Municipal Corporations. — Taxation.—Farming- Land. — A municipal corporation which is a small village, but having extensive limits, cannot tax farming lands for municipal purposes, lying within the corporate limits but outside of the platted portion of the city and so far removed from the settled portion of the city that the owner will receive no benefits from the municipal government. Affirming Territory v. Daniels, 6 Utah 288.
    Appeal from a judgment of the district court of the third district. The opinion states the facts.
    
      Mr. Joseph L. Rawlins, for the appellant.
    The Territorial legislature is vested with the power to legislate upon all rightful subjects of legislation consistent with the constitution and laws of the United States, which subjects are to be determined by an examination of the subjects upon which legislatures had been *n the practice of acting with the consent of the people. Maynard v. Hill, 125 U. S. 204. The’ creation of a municipal corporation, the fixing of its boundaries and conferring upon it the power to tax all property within its limits, are usual subjects of legislation. ,1 Dillon Mun. Corp. § 38; University v. Indiana, 14 How. 268; Root v. Shields, Woolworth C. C. 340, 356, 360; Kelly v. Pittsburg, 104 U. S. 80; Spencer v. Martin, 125 U. S. 355; U. S. v. New Orleans, 98 U. S. 392; Davidson v. Neto Orleans, 96 U. S. 107; 2 Dillon Mun. Corp. 738. The plaintiff and his property receives benefits from the taxes of the city in the preservation of peace, in irrigating his lands, the regulation of the liquor traffic, the restraining of animals, and in other ways.
    This law is not a violation of the fifth amendment to the constitution, because that has universally been held to be a restriction upon the power of eminent domain and not of taxation. 2 Dillon Mun. Corp. § 738. Hare American Con. Law, 332; Davidson v. New Orleans, 97 TJ. S. 107; Head v. Mg. Go., 113 TJ. S. 8, and Cooley on Taxation, 108, passim.
    
    
      Mr. Arthur Broion and Messrs. Sutherland and Judd, for the respondent.
    This case falls clearly within the rule of Territory v. Daniels, 22 Pac. Rep. 159, 6 Utah 288; and is supported by the case of Santa Glara Go. v. South Pac. By., 18 Eed. Rep. 398, which is affirmed, 118 TJ. S. 394.
   AndeRSOít, J.:

The defendant, as tax collector of the city of Kays-ville, levied upon and sold a wagon belonging to plaintiff for unpaid municipal taxes levied by said city upon, his property. The plaintiff brought this action against the^ defendant to recover damages for the taking and selling; said property, upon the ground that the taxes were illegal,, for the reason that the property on which the taxes-were levied was not liable to taxation for city purposes* being situated outside the platted and settled portions; of the city, and so remote theref2’om as to receive no~ benefit from the expenditure of the taxes for municipal' purposes. The defendant by his answer admitted the-seizure and sale of the plaintiff's property as alleged, but, claimed that the taxes for which it was taken were legal.. The cause was tried to the court without a jury upon, am agreed statement of facts. The court held the tax invalid, and gave judgment in favor of the plaintiff for $50, and costs, and the defendant brings this appeal from said judgment. Prom a plat of the city showing its corporate limits, the platted and settled portion thereof, and the location of plaintiff's premises, — which plat is made a part of the record, — and from the agreed statement of facts, it appears that the property of plaintiff, on which the taxes were levied, and on which he resides, consists of three tracts of land used for farming purposes, and a store, and all within the corporate limits of the city. One tract is situated a little over half a mile from the nearest part of the platted portion of the city. The second tract is situated about one mile, and the third tract about two miles, from the platted portion of the city, while the store is situated about two miles away, at a little place called “ Layton,” on a county road leading to the city proper, and also on the line of the Utah Central Railroad. This so-called “city” is only a small village, containing about 600 inhabitants in the platted portion thereof, and yet its corporate limits include more than twenty-three square miles. It is not shown that the platted and settled portion, or what may be termed the “city proper,” is likely to be extended in the direction of plaintiff's premises, nor that any . streets, driveways, or other improvements in that direction are contemplated or at all ■probable; nor is it shown that plaintiff will or can derive .•any benefit from the expenditure of these taxes, except in that general sort of way in which it may be said that all persons residing in the country are benefited by good streets, sidewalks, etc., in the town or city where they usually go to transact their’ business. But this kind of henefit is too slight to make it equitable or just that their property situated in the country should be taxed for city purposes. The questions involved in this case were fully considered and elaborated by this court in the case of People v. Daniels, 6 Utah, 288. That 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 he 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.

Blaokbuen, J., and MineR, J., concurred.  