ble merchandise is depriving the importer of his property without due process of law and is therefore forbidden by the Constitution of the United States. The cases of Murray's Lessee v. Hoboken L. & I. Co., 18 How. 272, and Springer v. United States, 102 U. S. 586, are conclusive on this point against the plaintiffs in error." See also, Earnshaw v. United States, 146 U. S. 60; Passavant v. United States, 148 U. S. 214.

§ 160. Residuum of taxing power remaining in the state. Early in this chapter the observation was made that every state legislature is endowed with all the omnipotence of the English parliament save so far as that omnipotence is restrained: first, by the limitations imposed by our dual system of Federal Government; second, by the limitations imposed by the constitution of the state itself. An attempt was then made to indicate, in a somewhat systematic way, just what those limitations, Federal and state really are. After the areas covered by such limitations have been deducted, the remainder represents the residuum of taxing power still vested in a state legislature. That such residuum is very large no one can doubt after an examination of the notable exposition contained in McCulloch v. Maryland, 4 Wheat. 316, in which the Court speaking through Chief Justice Marshall, said: “Whether the state of Maryland may without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the states; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. The argu

ment on the part of the state of Maryland is not that the states may directly resist the law of Congress, but that they may exercise their acknowledged powers upon it, and the constitution leaves them this right in confidence that they will not abuse it. Before we proceed to examine this argument and to subject it to the test of the con

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stitution, we must be permitted to bestow a few considerations on the nature and extent of the original right of taxation, which is acknowledged to remain in the states. It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the subjects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their government a right of taxing themselves and their property and as the exigencies of government can not be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislators and on the influence of the constituents over their representatives, to guard them against its abuse. subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a state extends to everything which exists by its authority or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution-powers conferred on that body by the people of the United States? . If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a state unimpaired; which leaves to a state the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the

government of the Union, and all those means which are given for the purpose of carrying those powers into execution."

The famous and luminous dictum thus pronounced by the great Chief Justice is generally cited to maintain the proposition that a state, apart from constitutional limitations, may exercise its taxing power on all the objects to which it extends-persons, property, and occupationsto the utmost limit to which it may choose to carry it,the remedy for any abuse of such power being political not judicial. That principle is a part of the English inheritance equally applicable to the Federal and state governments. Heine v. Levee Commissioners, 19 Wall. 655, 660; State Railroad Tax Cases, 92 U. S. 575, 615; Palmer v. McMahon, 133 U. S. 660, 669. In Meriwether v. Garrett, 102 U. S. 472, the Court said: "The levying of taxes is not a judicial act. It has no elements of one. It is a high act of sovereignty to be performed only by the legislature upon considerations of policy, necessity, and the public welfare. Having the sole power to authorize the tax, it (the legislative power) must equally possess the sole power to prescribe the means by which the tax shall be collected, and to designate the officers through whom its will shall be enforced." And so it has been held that the amount of the tax to be levied is exclusively within the discretion of the legislature. Spencer v. Merchant, 123 U. S. 355; New Orleans v. Duncan, 2 La. Ann. 186; People v. Fitch, 148 N. Y. 78. An inseparable incident to the power of taxation is that of apportionment. In People v. Brooklyn, 4 N. Y. 419, it was said: "The power of taxing and the power of apportioning taxation are identical and inseparable. Taxes can not be laid without apportionment, and the power of apportionment is therefore unlimited, unless it be restrained as a part of the power of taxation." A state legislature also possesses the right of classification and exemption. It may not only classify the subjects of taxation, but it may also determine the basis of assessment

and the manner in which the assessment may be made, subject only to the limitation that all property or persons within a given class shall receive like treatment. In the leading case of Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, the Court said that a state "may if it chooses exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only and not tax securities for payment of money; it may allow deductions from indebtedness, or not allow them. We think that we are safe in saying the Fourteenth Amendment was not intended to compel the state to adopt an iron rule of equal taxation. If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some of the states, whose object is to secure equality of taxation, and which are usually accompanied with qualifications deemed material; but it would render nugatory those discriminations which the best interests of society require." See also, Minot v. Philadelphia, W. & B. R. R. Co., 18 Wall. 206; Tucker v. Ferguson, 22 Wall. 527; Mobile & Ohio R. R. Co. v. Tennessee, 153 U. S. 486.

Apart from the power of the state to impose general taxes through an annual levy, it can impose special and local assessments determining at the same time the limits of the taxing district as an incident necessarily involved in the taxing power. Williams v. Eggleston, 170 U. S. 304. Thus in providing for such public improvements as involve the draining or irrigation of lands, the opening and grading of streets, and the laying of sewer-pipes, the legislative power must pass not only upon the necessity of the improvements and the method by which the expense must be defrayed, but upon the limits of the area upon which the burden must be imposed, and the appor

tionment of such burden among the several parcels lying within such area. Hagar v. Reclamation Dist. No. 108, 111 U. S. 701; Spencer v. Merchant, 125 U. S. 345; Norwood v. Baker, 172 U. S. 269. In Bauman v. Ross, 167 U. S. 548, the Court said: "The legislature, in the exercise of the right of taxation, has the authority to direct the whole or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading, or the repair of a street, to be assessed upon the owners of lands benefited thereby. Davidson v. New Orleans, 96 U. S. 97; The class of lands to be assessed for the purpose may be either determined by the legislature itself, by defining a territorial district, or by other designation; or it may be left by the legislature to the determination of commissioners, and be made to consist of such lands, and such only, as the commissioners shall decide to benefit. Spencer v. Merchant, 125 U. S. 345, and Shoemaker v. United States, 147 U. S. 282. Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112. The rule of apportionment among the parcels of land benefited also rests within the discretion of the legislature, and may be directed to be in proportion to the position, the frontage, the area or the market value of the lands, or in proportion to the benefits as estimated by the commissioners. Mattingly v. District of Columbia, 97 U. S. 687." And so the legislature may by direct action determine absolutely the necessity for the improvement, the area to be benefited by it, and the rate of apportionment; or it may delegate to the local authorities the power to consider and pass upon all such questions.

Thus it appears that while the power of taxation, which belongs exclusively to the legislature, can not be delegated by it either to other departments of the government or to private corporations, it may be delegated to those instrumentalities of the state known as municipal corporations, instituted for the more convenient application of state power to local concerns. Rees v. Watertown,