
    BENOIST, et al., vs. THE CITY OF ST. LOUIS.
    1. Under the act of February the 8th, 1843, reducing into one, the several acts relative lo the incorporation of ihe city of St. Louis, and providing that lands within the limits of the city, which have not been laid off into blocks and lots, shall not be assessed or taxed otherwise than by the acre, as agricultural lands, and shall continue to be so assessed and taxed, till Said off into blocks and lots, by the owners thereof respectively. Lands not laid off into blocks and lots, may be taxed according to their actual value ; and there is nothing in the act requiring the corporation to tax them according to the supposed profits that might be made from them, were they used for agricultural purposes.
    J. G. Richardson, City Counsellor;.
    1. The Constitution declares, “that all property subject to taxation in this State, shall be taxed in proportion to its value: Const, of Mo., Art. 18, Sec. 19. This is an absolute rule, controlling the Legislature in the exercise oi the taxing power, and from which it cannot depart. The city of St. Louis derives its power to levy and collect taxes from the General Assembly, and it is conveyed in these words: “ The Mayor and City Council shall have power within the limits of the city, by ordinance, to levy and collect taxes, not exceeding one per centum upon all property made taxable by law for State purposes.” The power in the city to tax, is delegated* and it cannot exercise any greater power than the sovereign that created it. It cannot claim or exercise the right to violate the Constitution, nod the L“giu!.if¡trej eari•notdelegatc a power it does not possess : City of Lexington, vs. McQuillan’g heirs, 9 Kami, <516. If the Legislature'cannot tax property but in *• proportion to its value,” it cannot command, and the law ought not to permit the city to do it.
    If. The Legislature may select the subjects of taxation, but, after milking the feleclion, they have not the power of exempting any portion oí that species ef property so selected, pj •of taxing unequally: Sutton-'s heirs vs. Louisville, 5 Dana3i. They may select real e'slate, and exempt every other description of property, but they cannot say that every acre shall he taxed alike. They may say that slaves, over a particular ag?, shall be taxed, but ihey cannot say that every slave without regard to age, ses, or value shall be taxed the same amount. rf)ne tract of land is valuable for is agricultural productions; another on acr.i'in) of the buildings upon it$ another for its mineral resources; another for its water j> ivi•Itiges, and another on account of its proximity to a thoroughfare or growing city. If the Legislature can tax land in reference to anj' other standard than Us value, they may say that, ■only hemp lands or wheat lands shall be taxed. Real estate,'fin a city, is never valued it> releretice to its fertility, and if it were indebted for Us taxable properties, to its capability for •agricultural productions, many tracts, worth millions in the market, but too poor to produce a spear of grass, would be exempt from taxation altogether. Every artificial standard L unjust, and actual appraisment is the only constitutional and practical mode of valuation : Pike vs. the State, 5 Tike 20-1 (directly in point.) In this case, the enactment in question dir* criminates between country properly and town lots, by declaring that lands should be valued without reference to the improvements ihereon, but that town fots should be valued with Die im improvements thereon. The Court says, “ if such tax be imposed on any improvements on land, every improvement thereon, ef the like kind, class or description, oust be equally taxed according to its value. If, for instance, a tax be imposed on brick houses, «0 house of that description can be legally exempt therefrom, but all such, whether situated in a city, town or village, or in the country, must contribute equally; that is, in propot Hon to their value, to the revenue of the State. • • * * * * And the Legislature possesses no power to restrict its operation to such landh or improvements thereon, or to any other property subjected to such taxation, as may be situated in any specified po'r ion of the State, or in any sectional or legal division or subdivision thereof, because no such restriction can possibly exist, if the tax imposed bo equal and uniform throughout the Sr.i'-e: page 207.
    Spalding & Snepley, for respoudents-
    I. The Courtbelow acted legally in perpetuating the injunction ; for the city bad no right under the circumstances of this -case, to assess the land of the appellees, at its actual value, bnd tax it aecordingly-
    The city Charter, February 8th, J843, page 124, sec. 10, provides, that the land in the now limits should not he talced, except as agricultural lands, by the acre, till laid off into blocks and lots by the owners.
    This provision was male because these lands, farms adjoining to the old city, had bean Included in the city, as extended, without the consent of the owners ; and the city had got largely in debt, for purposes which did not benefit those new/y brought into the limits, &c.
    This distinction was constitutional: 13 Ho. Rep. 400; 9 Mo. Rep. S07, where the taxing ÍS restricted to one-sixteenth of one per cent., on certain lands, and held gord and legal.
    The article of the Constitution as to equality of taxation, is inapplicable. Sec Charter •f 1843, page 123, sections 3 and 8. The city has power to compel lot owners to pay for Sewers, for paving side-walks, &c. Also, the Road laws are illustrations of this principle..
    II. The city had no right to tax the land higher than one-sixteenth of one per cent., UB certain improvements had been made, which were not completed when_ the assessment eras «Side.
    
      The city Charter, taking effect from and afier the 31st of March, 1841, sec. 17, p. 139, enacts, that within twelve months the Council “ should cau-e to be graded and macadamized the carriage way of Broadway, south of Seventh Washington avenue and Market street;-, 25 feet wide from the boundaries of thi city, established bj thL art, to the neaiest point macadamized within the present limits of lire city, and until such carriage ways are made and com. pleted, the lots and grounds, beyond the present limits of the city, shall not be taxed for city purposes, more than one-sixteenth ofone per cent:” 13 Mo. Rep. 400, City vs. Allen: The-above section was continued in force by the Charter of 8 Reb., 1843.
    It .s understood that the city acquiesces in the decision, that the one-sixteenth of one per cent, was all that could be collected by the citv until the improvement was made. The «onusel (dr llie city do not raise this point, but only the point of agrirultural lands. Now it seemB to me, that the Court have decided the principle in the case cited above, in the 13 Mo. Reports. That case settles the doctrine, that tile city authorities have a right to tax unequally, when authorized so to do by the Geneial Assembly.
    The constitutional provision, that property subject to taxation, shall be taxed according to value, applies only to taxes levied by the State. It does not apply to municipal coipora.tions. In them, we are taxed on their property for sundry public impiovements, tuie- • qually.
    But the extension of the new cha ter may be considered conditional. The lands, agricultu.ral, (aken into thr city limits, shall not be within the cily legislation, for all purposes till the owners give their consent, by subdivision into Sots and squares. This, certainly, was competent for the Legislatuie to do. A farm may be added to the city on condition that the owner assents to it, and expresses that assent by some act, or, it may be included within the oi y limits for some purposes and not for others.
   Scott, J.,

delivered the opinion of the court.

The plaintiff’s were owners of a tract land, of a portion of which, 211 acres and a fraciion, was thrown w ¡thin the new limits cf the cit) of St. Louis, by the act of 1841, entitled “An act to amend an act to incorporate the city of St. Louis.” By the 17th section of the 7th article of this act it is provided, that the lands thrown within the limits by its authority, should not be taxed more than one sixteenth ofone per cent., until certain improvements, beneficial to the residents and land holders within the new limits,,should be made, which were required to be completed within twel\ e months from the passing of the act. On the 8th of Febru» ary, 18 8, an act was passed to reduce into one, the several acts relative to the incorporation of the city of St. Louis, the 10th section of which (art; 6) provides, that lands within the limits of the city, which have not been laid off rulo blocks and lots, shall not be assessed or taxed otherwise than by the acre as agricultural lands, and shall continue to be so assessed and taxed till laid off into blocks and lots by the owners • thereof, respectively. The actual value of the land was estimated at ((*,000 per acre, but, if used for agricultural purposes only, its estimate -i v «m lit was two hundred dollars per acre. The assessment was made 3, *s a tual value, §6,000 per acre, at the rate of one sixteenth of one per cent.., according to the provisions of the act of 1841. The plaintiff appealed from (he. assessment to the city authorities, in pursuance to the ordinance in relation to appeals, when the assessment was confirmed. and they then appli.-d to the Circuit Court for an injunction, -when the proceedings were perpetually enjoined ; from which decree the city of Sí. Loui< appealed.

The question, in this case, arises on the above recited provision of the act of 1844. Shall file lauds be taxed according to their actual value, or according to the supposed piofits that might be made from them,.were they used for agricultural purposes? The act of 1841 brought within the limits of the city some farms and portions of farms, and the act of 1813, from its terms, was designed to point out the inode in which they should he assessed. They are required to be assessed by the acre, as agnoultur-il land-, until they are laid off into blocks and streets, if tils ellipsis is supplied, the sentence will read as agricultural lands are asse-.-s-d or taxed. This is the grammatical construction of the language of the act, and it comports with the obvious interest ,-f the Legislature. There is nothing else in the act which shows that any other than the real value of the land, by the acre, should be regarded in assessing it. The object oí the law, in increasing tlie’iimits of the city, was to make those'eontribute something toils improvement, wiiose lands bad been .so mu. h enhanced in value by reason of herexpendnu.es. If the ¡node of assessment contended for by the plaintiff is sanctioned, the purpose of the act will be defeated, as the product of such an assessment would scarcely compensate the officers in making and collecting it.. For, let it be borne in mind, that at this time tue. assis'inent could not exceed one sixteenth of one per cent. Had the improvements contemplated by the act of 1841 been made within tue » e>v limits, would it be contended thai afterwards, the land owners within them, f <r g onitd which they did not cuoose to lay out in blocks and lois, could only be faxed according to the profits which nvgh» be madt from a when u.m d •for agricultural purposes. The amendment to the Charter in ¡8-17 inquires íhat one-fourth of the taxes on lands and lic-nses collected wu.iin the new limits, shall be expended within them in improvement*, and the act of 1849 gives one-half of these taxes for these purposes, and continues the act of 1847 in force for two years. S jail these improvements, made in part at the expense of others, continue *0 enhaiu e she value 4"tile estalas of the land owners yearly. and yet,-.hall not tin u-taxes be increased u pvopo-tion to the enhan-ed value of iliei.- • erty ? By the >n >d of assessment com ended for, while trie yearly v ilvse of the sand i* increased, its val »e for agrícültu'al punces may be diminished. The compensation to land holders for including their farms within the limits, is to be found in the great improvements required by the .act of 1841» and not in the supposed mode of assessment, as is clearly shown by the guaranty given, that their taxes shall not exceed one-sixteenth of one per cent, until the improvements are mad®, while property within the old limits might be taxed as high as one-half of one per eent.-

The other judges concurring, the decree will be reversed, the injunction dissolved, and the complainant’s bill dismissed.  