Opinion of the Justices

We are not aware of any clause in the constitution, or%i any law of the United States, which can be con-strued to limit the power of a state legislature to tax lands in unincorporated places within its limits. If, then, the power of the legislature of this state is limited in that respect, the limitation must be found in our own constitution.

This instrument, aftér declaring generally, as we have before stated, that the supreme legislative power shall be vested in a Senate and House of Reprentatives, which shall be styled the General Court, repeats the grant of legislative power in limited and qualified terms. “ Full power and authority are hereby given and granted to said General Court, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instruc-tions, either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state.”' Here the power granted is a power to make all manner of laws and statutes, which are wholesome, reasonable, and not repugnant to the constitution. It is, in its na-ture, a limited, restricted power.

It is an old maxim of the common law of England, that when an act of parlia-ment is against common right and reason, the common * law will control it and adjudge it void; and one object of this provision in our constitution was to adopt and con-firm that maxim of the common law. An act of the legislature, in order to have the force of a statute, must therefore, be neither repugnant to reason, nor to the constitution.

OPINION. 567 But the constitution has not left the power to impose and levy taxes, to be exercised under this grant of power limited and restricted as it is, but has made a special provision on the subject of taxation. u Full power and authority are hereby given and granted to the said Gen-eral Court.—to impose and. levy proportional and reason-able assessments, rates and taxes upon all the inhabitants of, and resident within, the said state, and upon all es-tates within the same.” It is a sound rule, that the dif-ferent parts of an instrument shall be so expounded as to give meaning to every part, if it be possible. And it is not uncommon to find a grant in indefinite general terms, limited and explained by a subsequent enumera-tion of particulars.

And when such enumeration is clearly and explicitly made, it must be construed to con-trol the general terms, for otherwise it will be merely idle and nugatory. Thus, in our constitution, it is de-clared in the first place, that the supreme legislative power shall be vested in two bodies, who are to be styled the General Court. But these general terms are subse-quently explained and limited, by the clause which gives to the General Court full power, to make, ordain, and es-tablish, all manner of wholesome and reasonable orders, laws, statutes, &c. not repugnant to the constitution. For if this clause be not construed to limit and control the other, it is idle and useless.

So the grant of full power to make all manner of wholesome and reasonable statutes, is broad enough to give the power of imposing and levying taxes. But this grant of power is limited and explained by the subsequent clause, which we have recited on the subject of taxation. The constitution, having in express terms, given the power to impose and levy proportional and reasonable taxes, it is wholly inad-missible to deduce from any more general terms, used in other parts of the instrument, the power to impose and levy any other than proportional and reasonable taxes.

Because, if the clause on the subject of taxation, be not 568 OPINION. construed to explain and limit the more general terms used, it will be altogether idle..The constitutional right of the legislature, to impose taxes, cannot, then, by any sound rule of construction, be held to extend farther than to impose proportional and reasonable taxes. What then are to be considered as proportional and reasonable taxes ? On this question, the next clause in the constitution deserves attention. “And while the public charges of government, or any part thereof, shall be assessed on polls and estates in the manner that has been heretofore prac-tised, in order that such assessments may be made with equality, there shall be a valuation of the estates, within the state, taken anew, once in every five years,” &c.

The equality, here intended, is, that the same tax shall be laid, upon the same amount of property, in every part of the state, so that each man’s taxable property shall bear its due portion of the tax according to its value. And a tax thus laid upon the taxable estate of the peo-ple, is a proportional tax, within the meaning of the constitution. So, in the twelfth article of the bill of rights, it is de-clared that “ Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty, and property; he is therefore bound to contrib-ute his share in the expense of.such protection.” It is very manifest, that “ his share,” here means, his pro-portional part of the expense, according to the amount of his taxable estate.

The power of Congress, to impose duties and taxes is limited by the constitution of the United States. “ All duties, imposts, and excises shall be uniform throughout the United States.” “No capitation, or other direct tax, shall be laid, unless in proportion to the census.” An act of the Congress of the United States, laying a duty upon an article, in a particular state, different from the duty, laid on the same article in the other states, would OPINION. therefore be unconstitutional and void. And an net of Congress, laying a proportional direct tax upon all the citizens of the United States immediately, would also be repugnant to the constitution.

Because, before the tax can be laid upon individuals, it must be apportioned among the several states according to their numbers, which are to be determined by adding to the whole num-ber of free persons, exclusive of Indians not taxed, three fifths of all other persons. But when a state’s proportion of a direct tax has been ascertained, that proportion has always been laid upon the objects of taxation in the state in such a manner as to be a proportional tax, according to the meaning of that word in our constitution. The practice under our constitution is also to be con-sidered.

Provision has always been made by permanent statutes, from the time when our constitution was estab-lished, “ that all rates and taxes shall be made and as-sessed in proportion to the amount of each man’s poll and rateable estate.” This is a practical exposition of the clause in the constitution, which we are now examining, which is entitled to great weight. But the taxes, laid upon inhabitants, and residents, and upon estates are not only to be proportional, but “reasonable.” The word “reasonable” in this clause of the constitution, seems to be used as having the same meaning with the word just, and the sense of the clause to be, that taxes shall be laid, not merely proportion-ally, but in due proportion, so that each individual’s just share, and no more, shall fall upon him.

This is the sense in which the makers of the statute of February 8, 1191, must have understood the term; for the language of that act is, “ that the selectmen of the several towns in this state, be, and they hereby are authorized, empow-ered and required, &c, to assess the polls and estates within such towns, according to the rules and directions of law, their just and equal proportion of all sums of mon-ey granted by the General Court,” von. i. 12 570 OPINION. To establish the rules by which each individual’s just and equal proportion of a tax shall be determined, is a task of much difficulty, and a very considerable latitude of discretion must be left to the legislature on the subject. The force of this remark may be seen by a moment’s con-sideration of the nature of a tax upon polls.

A tax of a particular sum, upon every poll in the state, might be ea-sily laid, and would be, in one sense of the term, a pro-portional tax. But no person would suppose, that such a tax would be just and reasonable. No one would think, that the polls of children, in their earliest infancy, or of idiots and distracted persons, were proper subjects of taxation. It must rest, then, in the sound discretion of the legislature, to determine what polls may, and what may not be, justly and reasonably taxed.

And this dis-cretion has always been exercised by the legislature. Within the limits of this discretion, as to the selection of proper subjects of taxation, and the proportion of the tax that shall be laid oh each subject, the authority of the legislature is, without question, supreme. But it is supposed, that if the legislature should attempt to impose a tax upon a single individual, or upon a single town, or county, for any purpose whatever, such attempt could not be considered as a due exercise of any discretion which the constitution has left to the legislature on the subject, and that such a tax could not he viewed as a proportional and reasonable tax, within the meaning of the constitution. It is believed that the common sense of the community would pronounce such an attempt to be repugnant to the general spirit as well as the plain letter of the constitution.

It would certainly be a de-parture from the general practice of the legislature. No tax is ever imposed upon a single county by the General Court. All taxes upon counties are, by law, imposed by the representatives of the several towns in the counties, respectively assembled in a convention for the purpose. No tax is ever imposed upon a single town by the legis-OPINION. lature.

All town taxes are raised by a vote of the in-habitants of the towns respectively. The taxes imposed by the legislature for the support of schools do not form an exception. For these are, in their nature, state taxes, and fall in due proportion upon every town in the state. Lands in unincorporated places, may be taxed their just and reasonable proportion of all public taxes.

The constitution recognizes, in express terms, the authority of the legislature to tax the inhabitants of such places.

Some places, which have been mentioned in the vari-ous proportion acts, and have lmd (heir proportion of the public taxes there stated, arc believed not to be in-corporated. OPINION. The statute of February 27, 1786, section 5, imposes the burthen of making and keeping in repair highways laid out through unincorporated places, upon the owners of the land. And the owners are empowered to call meetings for the purpose of voting such sums as may be necessary for the purpose; and in case they neglect to make or repair such highways, provision is made for doing it at their expense.

Indeed, it seems to have been the general opinion in the legislature, and we see no reason why the correct-ness of it should be doubted, that the General Court has aright to impose proportional and reasonable j;axes upon unincorporated places; but we are of opinion, for the reasons before stated, that the legislature has not a con-stitutional right to impose a tax upon lands, in a particu-lar unincorporated place, for the purpose of making or repairing roads in such place, or for any other purpose. The next question, is, “ lias the legislature a constitu-tional right to grant a tax upon a particular incorporated town or place, for the purpose of making or repairing roads in such town or place ?” And we are of opinion, that this question also, for the same reasons which we have stated in our answer to the first question must be answered in the negative.

The last question is, “ Can the legislature authorize a guardian of minors, by a special act or resolve, to make a valid conveyance of the real estate of his wards ?” The objection to the exercise of such a power by the legislature, is, that it is in its nature both legislative and judicial. It is the province of the legislature to prescribe the rule of law, but to apply it to particular cases, is the business of the courts of law.

And the thirty-eighth article in the bill of rights, declares, that “ in the gov-ernment of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and ihdependent of, each oth-er, as the nature of a free government will admit, or as OPINION. is consistent with that chain of connexion that binds the whole fabric of the constitution in one indissoluble bond of union and amity.” The exercise of such a power by the legislature can never be necessary. By the exist-ing laws, judges of probate have very extensive juris-diction to license the sale of the real estate of minors by their guardians.

If the jurisdiction of the judges of probate, be not sufficiently extensive to reach all proper cases, it may be a good reason why that jurisdiction should he extended; but can hardly be deemed a suffi-cient reason for the particular interposition of the legis-lature in an individual case. If there be a defect in the laws, they should be amended. Under our institutions all men are viewed as equal, entitled to enjoy equal pri-vileges, and to be governed by equal laws. If it be fit and proper, that license should be given to one cuardian, under particular circumstances, to sell the estate of his ward, it is fit and proper that all other guardians should, under similar circumstances, have the same license.

This is the very genius and spirit of our institutions. And we are of opinion, that an act of the legislature to authorize the sale of the land of a particular minor, by his guardian, cannot be easily reconciled with the spirit of the article in the bill of rights which we have just cited. It is true, that the grant of such a license by the legis-lature to the guardian, is intended as a privilege and benefit to the ward. But, by the law of the land, no minor is capable of assenting to a sale of his real estate in such a manner as to bind himself.

And no guardian is permitted, by the same law, to determine when the estate of his ward ought, and when it ought not, to be sold. In the contemplation of the law, the one has not sufficient discretion to judge of the propriety and expe-diency of a sale of his estate, and the other is not to be entrusted with the power of judging. Such being the general law of the land, it is presumed that the legisla-574 OPINION. ture would be unwilling' to rest the justification of an act authorizing the sale of a minor’s estate, upon any assent which the guardian or the minor could give to the pro-ceeding. The question then is, as it seems to us, can a ward be deprived of his inheritance, without his consent, by an act of the legislature which is intended to apply to no other individual ?

The fifteenth article in the bill of rights, declares, that no subject shall be deprived of his pro-perty “ but by the judgment of his peers or the law of the land.” Can an act of the legislature, intended to authorize one man to sell the land of another without his consent, be “ the law of the land,” within the mean-ing of the constitution ? Can it be “ the law of the land” in a free country ? If the question proposed to us can be resolved into these questions, as it appears to us it may, we feel entirely confident, that the represen-tatives of the people of this state, will agree with us in the opinion we feel ourselves bound to express on the question submitted to us, That the legislature cannot authorize a guardian of minors, by a special act or re-solve, to make a valid conveyance of the real estate of his wards. WM.

M. RICHARDSON, SAM’l GREEN, JOHN HARRIS.