highway labor. "The framers of the constitution intended to direct a uniform mode of taxation on property, and not to prohibit any other species of taxation, but to leave the legislature the power to impose such other taxes as would be consonant to public justice, and as the circumstances of the country might require. They probably intended to prevent the imposition of an arbitrary tax on property, according to kind and quantity, and without reference to value. The inequality of that mode of taxation was the object to be avoided. We cannot believe they intended that all the public burdens should be borne by those having property in possession, wholly exempting the rest of the community, who, by the same constitution, were made secure in the exercise of the rights of suffrage, and all the immunities of the citizen." 1 And in another case, where an assessment of highway labor is compared with one upon adjacent property for widening a street, which had been held not to be taxation, as that term was understood in the constitution, it is said: “An assessment of labor for the repair of roads and streets is less like a tax than is such an assessment. The former is not based upon, nor has it any reference to, property or values owned by the person of whom it is required, whilst the latter is based alone upon. the property designated by the law imposing it. Nor is an assessment a capitation tax, as that is a sum of money levied upon each poll. This rate, on the contrary, is a requisition for so many days' labor, which may be commuted in money. No doubt, the number of days levied, and the sum which may be received by commutation, must be uniform within the limits of the district or body imposing the same. This requisition for labor to repair roads is not a tax, and hence this exemption is not repug

nant to the constitution." 2

It will be apparent from what has already been said, that it is not essential to the validity of taxation that it be levied according to the rules of abstract justice. It is only essential that the legislature keep within its proper sphere of action, and do not impose burdens under the name of taxation which are not taxes in fact; and its decision as to what is proper, just, and politic, must

1 Sawyer v. City of Alton, 4 Ill. 127, 130; State v. Halifax, 4 Dev 845; Amenia v. Stamford, 6 Johns. 92 Draining Co. Case, 11 La. Ann. 338, 372.

pp. 625, 626, that the cost of a local improvement cannot be imposed on the adjoining premises irrespective of any ap portionment, and appears to suppose our

2 Town of Pleasant r. Kost, 29 Ill. 490, views rest upon the injustice of such a 494.

3 Frellsen v. Mahan, 21 La. Ann. 79; People . Whyler, 41 Cal. 351; Warren v. Henley, 31 Iowa, 31. In this last case, Beck, J., criticises the position taken ante,

proceeding. This is not strictly correct; it may or may not be just in any particu lar case; but taxation necessarily implies apportionment, and even a just burden cannot be imposed as a tax without it.

then be final and conclusive. Absolute equality and strict justice are unattainable in tax proceedings. The legislature must be left to decide for itself how nearly it is possible to approximate so desirable a result. It must happen under any tax law that some property will be taxed twice, while other property will escape taxation altogether.1 Instances will also occur where persons will be taxed as owners of property which has ceased to exist. Any system adopted for taking valuations of property must fix upon certain time for that purpose, and a party becomes liable to be taxed upon what he possesses at the time the valuing officer calls upon him. Yet changes of property from person to person are occurring while the valuation is going on, and the same parcel of property may be found by the assessor in the hands of two different persons, and be twice assessed, while another parcel in the transfer from hand to hand fails to be assessed at all. So the man who owns property when the assessment is taken may have been deprived of it by accident or other misfortune before the tax becomes payable; but the tax is nevertheless a charge against him. And when the valuation is made but once in a series of years, the occasional hardships and inequalities in consequence of relative changes in the value of property from various causes, becomes sometimes very glaring. Nevertheless, no question of constitutional law is raised by these inequalities and hardships, and the legislative control is complete.2

1 Duplicate taxation must occasionally take place, however carefully the law may have been framed to avoid it. A tax cannot be set aside on that ground merely. Augusta Bank v. Augusta, 36 Me. 255. It is customary to tax corporations on their capital stock, or on their property, and also the corporators on their shares; and this is entirely admissible. Farrington v. Tennessee, 95 U. S. 679; Sturges v. Carter, 114 U. S. 511; Belo v. Commissioners, 82 N. C. 415; s. c. 33 Am. Rep. 688; Bradley v. Bander, 36 Ohio St. 28; s. c. 38 Am. Rep. 547; Cook v. Burlington, 59 Iowa, 251; Lee v. Sturges, 19 N. E. Rep. 560 (Ohio). The tax on the shares may be collected from the corporation out of dividends. Street Railroad Co. v. Morrow, 87 Tenn. 406. But it is said the intent to tax both stock and shares must be clear. Penn. Co. v. Com., 15 Atl. Rep. 456 (Pa.). So land may be taxed at its full value, and also the

mortgage upon it. People v. Board of Supervisors, 38 N. W. Rep. 639 (Mich.).

2 In Shaw v. Dennis, 10 Ill. 405, objection was taken to an assessment made for a local improvement under a special statute, that the commissioners, in determining who should be liable to pay the tax, and the amount each should pay, were to be governed by the last assessment of taxable property in the county. It was insisted that this was an unjust criterion, for a man might have disposed of all the taxable property assessed to him in the last assessment before this tax was actually declared by the commissioners. The court, however, regarded the objection as more refined than practical, and one that, if allowed, would at once annihilate the power of taxation. "In the imposition of taxes, exact and critical justice and equality are absolutely unattainable. If we attem have to divide a single y given article of property

The legislature must also, except when an unbending rule has been prescribed for it by the constitution, have power to select in its discretion the subjects of taxation. The rule of uniformity requires an apportionment among all the subjects of taxation within the districts; but it does not require that everything which the legislature might make taxable shall be made so in fact. Many exemptions are usually made from taxation from reasons the cogency of which is at once apparent. The agencies of the national government, we have seen, are not taxable by the States; and the agencies and property of States, counties, cities, boroughs, towns, and villages, are also exempted by law, because, if any portion of the public expenses was imposed upon them, it must in some form be collected from the citizens before it can be paid. No beneficial object could therefore be accomplished by any such assessment. The property of educational and religious institutions is also generally exempted from taxation by law upon very similar considerations, and from a prevailing belief that it is the policy and the interest of the State to encourage them.

different individuals who owned it at different times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The legislature must adopt some practical system; and there is no more danger of oppression or injustice in taking a former valuation than in relying upon one to be made subsequently." And see People v. Worthington, 21 Ill. 171.

1 Wisconsin Cent. R. R. Co. v. Taylor County, 52 Wis. 37; Stratton v. Collins, 43 N. J 563; New Orleans v. People's Bank, 32 La. Ann. 82; New Orleans v. Fourchy, 30 La. Ann. pt. 1, 910; Gibbons v. Dist. Columbia, 116 U. S. 404; University v. Skidmore, 87 Tenn. 155. But if provision for certain exemptions is made by the constitution, no others are valid. Le Duc v. Hastings, 39 Minn. 110.

2 As in the case of other special privileges, exemptions from taxation are to be strictly construed. Trustees of M. E. Church v. Ellis, 38 Ind. 3; State v. Mills, 34 N. J. 177; Nashville, &c. R. R. Co. v. Hodges, 7 Lea, 663; Railway Co. v. Philadelphia, 101 U. S. 528; Morris v. Royal Arch Masons, 68 Tex. 698; Yazoo & M. V. R. R. Co. v. Thomas, 65 Miss. 553; People v. Davenport, 91 N. Y. 574. Commonwealth's Appeal, 127 Pa.

If

St. 435; Third Cong. Soc. v. Springfield, 147 Mass. 396; ante, 338; and many other cases cited in Cooley on Taxation, 146. The local authorities cannot be authorized by the legislature to make exemptions. Farnsworth Co. v. Lisbon, 62 Me. 451; Wilson v. Supervisors of Sutter, 47 Cal. 91; State v. Hannibal, &c. R. R. Co. 75 Mo. 208; Austin v. Gas Co., 69 Tex. 180. See Brewer Brick Co. v. Brewer, 62 Me. 62; s. c. 16 Am. Rep. 395; State v. Hudson, &c. Com'rs, 37 N. J. 12; Augusta Factory v. Augusta, 10 S. E. Rep. 359 (Ga.). Compare Danville v. Shelton, 76 Va. 325. But they may doubtless be authorized to decide upon the facts what persons or property come within the rules of exemption prescribed by the legislature. It has been generally held that an exemption from taxation would not exempt the property from being assessed for a local improvement. Matter of Mayor &c., 11 Johns. 77; Baltimore v. Cemetery Co., 7 Md. 517; La Fayette v. Orphan Asylum, 4 La. Ann. 1; Pray v. Northern Liberties, 31 Pa. St. 69; Le Fever v. Detroit, Mich. 586; Lockwood v. St. Louis, 24 Mo. 20; Broadway Baptist Church v. McAtee, 8 Bush, 508; 8. c. 8 Am. Rep. 480; Universalist Society v. Providence, 6 R. I. 235; Patterson v. Society, &c., 24 N. J. 385; Cincinnati College v. State, 19 Ohio, 110; Brewster

the State may cause taxes to be levied from motives of charity or gratitude, so for the like reasons it may exempt the objects of charity and gratitude from taxation. Property is sometimes released from taxation by contract between the State and corporations, and specified occupations are sometimes charged with specific taxes in lieu of all taxation of their property. A broad field is here opened to legislative discretion. As matter of State policy it might also be deemed proper to make general exemption of sufficient of the tools of trade or other means of support, to enable the poor man, not yet a pauper, to escape becoming a public burden. There is still ample room for apportionment after all such exemptions have been made. The constitutional requirement of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burden.2 The power to determine the persons and the objects to be taxed is trusted exclusively to the legislative department; but over all those objects the burden must be spread or it will be unequal and unlawful as to such as are selected to make the payment.

v. Hough, 10 N. H. 138; Seymour v. Hartford, 21 Conn. 481; Palmer v. Stumph, 29 Ind. 329; Peoria v. Kidder, 26 Ill. 351; Hale v. Kenosha, 29 Wis. 599; Seamen's Friend Society v. Boston, 116 Mass. 181; Orange, &c. R. R. Co. v. Alexandria, 17 Gratt. 176; Lima v. Cemetery Ass., 42 Ohio St. 128; State v. Kansas City, 89 Mo. 34; Chicago v. Baptist Union, 115 Ill. 245. Contra, Trustees M. E. Ch. v. Atlanta, 76 Ga. 181, and see Swan Point Cem. v. Tripp, 14 R. I. 199. Land held in trust for the State is exempt. People v. Trustees of Schools, 118 Ill. 52. The customary constitutional inhibition of any law respecting an establishment of religion, &c., is not violated by an exemption of church property from taxation. Trustees of Griswold College v. State, 46 Iowa, 275; 8. c. 26 Am. Rep. 138.

1 But it is not competent to grant exemptions from taxation based on sex or age,e. g,, widows, maids, and female minors, and an act attempting to make such exemptions is void. State v. Indianapolis, 69 Ind. 375; s. c. 35 Am. Rep. 223.

2 State v. North, 27 Mo. 464; People v. Colman, 3 Cal. 46; Durach's Appeal, 62 Pa. St. 491; Brewer Brick Co. v. Brewer, 62 Me. 62; s. c. 16 Am. Rep. 395.

3 Wilson v. Mayor, &c. of New York,

4 E. D. Smith, 675; Hill v. Higdon, 5 Ohio St. 243; State v. Parker, 33 N. J. 313; State v. County Court, 19 Ark. 360. Classes of property as well as classes of persons may be exempted. Butler's Appeal, 73 Pa. St. 448; Sioux City v. School District, 55 Iowa, 150. Notwithstanding a requirement that "the rule of taxation shall be uniform," the legislature may levy specific State taxes on corporations, and exempt them from municipal taxation. So held on the ground of stare decisis. Kneeland v. Milwaukee, 15 Wis. 454. See Ill. Cent. R. R. Co. v. McLean Co., 17 Ill. 291; New Orleans v. Savings Bank, 31 La. Ann. 826; Hunsaker v. Wright, 30 Ill. 146; Portland v. Water Co., 67 Me. 135.

In the case of Weeks v. Milwaukee, 10 Wis. 242, a somewhat peculiar exemp tion was made. It appears that several lots in the city upon which a new hotel was being constructed, of the value of from $150,000 to $200,000, were purposely omitted to be taxed, under the direction of the Common Council, "in view of the great public benefit which the construction of the hotel would be to the city." Paine, J., in delivering the opinion of the court, says: "I have no doubt this exemption originated in motives of generosity and public spirit. And perhaps the

"1

In some of the States it has been decided that the particular provisions inserted in their constitutions to insure uniformity are so worded as to forbid exemptions. Thus the late Constitution of Illinois provided that "the General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property.' Under this it was held that exemption by the legislature of persons residing in a city from a tax levied to repair roads beyond same motives should induce the taxpay them, and assess the whole tax upon a ers of the city to submit to the slight in- part only of those who are liable to pay crease of the tax thereby imposed on it, and have it still a legal tax, then the each, without questioning its strict legal- laws afford no protection, and the citizen ity. But they cannot be compelled to. is at the mercy of those officers, who, by No man is obliged to be more generous being appointed to execute the laws, would than the law requires, but each may seem to be thereby placed beyond legal stand strictly upon his legal rights. That control. I know of no considerations of this exemption was illegal, was scarcely public policy or necessity that can justify contested. I shall therefore make no carrying the rule to that extent. And the effort to show that the Common Council fact that in this instance the disregard of had no authority to suspend or repeal the the law proceeded from good motives general law of the State, declaring what ought not to affect the decision of the property shall be taxable and what ex- question. It is a rule of law that is empt. But the important question pre- to be established; and, if established sented is, whether, conceding it to have here because the motives were good, it been entirely unauthorized, it vitiates would serve as a precedent where the the tax assessed upon other property. motives were bad, and the power usurped And upon this question I hink the follow- for purposes of oppression." pp. 263–265. ing rule is established, both by reason and See also Henry v. Chester, 15 Vt. 460; authority. Omissions of this character, State v. Collector of Jersey City, 24 N. J. arising from mistakes of fact, erroneous 108; Insurance Co. v. Yard, 17 Pa. St. 331; computations, or errors of judgment on Williams v. School District, 21 Pick. 75; the part of those to whom the execution of Hersey v. Supervisors of Milwaukee, 16 the taxing laws is entrusted, do not neces- Wis. 185; Crosby v. Lyon, 37 Cal. 242; sarily vitiate the whole tax. But inten- Primm v. Belleville, 59 Ill. 142; Adams tional disregard of those laws, in such v. Beman, 10 Kan. 37; Brewer Brick Co. manner as to impose illegal taxes on those v. Brewer, 62 Me. 62, s. c. 16 Am. Rep. who are assessed, does. The first part 395. But it seems that an omission of of the rule is necessary to enable taxes to property from the tax-roll by the asbe collected at all. The execution of sessor, unintentionally, through want of these laws is necessarily entrusted to men, judgment and lack of diligence and busiand men are fallible, liable to frequent ness habits, will not invalidate the roll. mistakes of fact and errors of judgment. Dean v. Gleason, 16 Wis. 1; Ricketts v. If such errors, on the part of those who Spraker, 77 Ind. 371. In Scofield v. are attempting in good faith to perform Watkins, 22 Ill. 66, and Merritt v. Farris, their duties, should vitiate the whole tax, 22 Ill. 303, it appears to be decided that no tax could ever be collected. And even in the case of intentional omissions therefore, though they sometimes increase the tax-roll would not be invalidated, but improperly the burdens of those paying the parties injured would be left to their taxes, that part of the rule which holds remedy against the assessor. See also the tax not thereby avoided is absolutely Dunham v. Chicago, 55 Ill. 359; State v. essential to a continuance of government. Maxwell, 27 La. Ann. 722; New Orleans But it seems to me clear that the other v. Fourchy, 30 La. Ann. pt. 1, 910. Compart is equally essential to the just pro- pare Francis v. Railroad Co., 19 Kan. 303. tection of the citizen. If those executing 1 Art. 9, § 2, of the old Constitution. these laws may deliberately disregard