the police of the State, in regulations for the preservation of health or the detection of crime; for courts of law, that individual rights may be protected and enforced, and that crime, when detected, may receive its fitting punishment; for the preservation of peace and the protection of the country from foreign enemies; to aid, encourage and stimulate commerce, domestic and foreign, by the establishment of mints, postal system, and maintaining navies to keep open the highway of nations; to encourage citizens in the defense of their country, by suitable rewards and mementoes for past services in times of war, or by bounties for enlistment for future services; and for the promotion of the arts and sciences.1 For all these matters taxes may be imposed; the purpose is public; the object is governmental; the money raised and property purchased is held by the agents of the State for the State. The object is so to regulate the State that all its citizens may enjoy their lives, liberty and property, and pursue their happiness according to the dictates of their own reason. On the other hand, where the purpose is to establish a saw-mill, a brick company, an iron foundry, a hotel, or to support disabled firemen by forced contributions from one class of persons exclusively, the object is not governmental; it is to promote primarily the interests of individuals. The convenience of the public may be promoted, but the property is that of the individual, who may use it as he thinks proper, independent of any special public control. When the facts of a case show the act to come within the first class, it is valid; when it clearly comes within the latter, the courts whose province it is to decide whether the purpose be public or private will declare it void. The only exception to the rule is the case of a theater company, incorporated with powers to build a theater and to take fire and marine insurance risks. An act of the legislature, causing a municipal subscription to the stock of this company, was held valid, on the ground that "it would contribute to the wealth and embellishment, and afford a place of relaxation and amusement, and would tend to correct and enlighten the

1 Brick Co. v. Inhabitants of Brewer, 14 Am. Law Reg. (Dec. No.) 735; Sharpless v. Mayor of Philadelphia, 21 Penn. St. 147, 169, 170.

2 See Hitchcock v. St. Louis, 49 Mo. 484. Donations to an orphan asylum not under the control of the city, a private purpose. Judge Redfield's note to Allen v. Inhabitants of Jay, 13 Am. Law Reg. 497, 500; what is public use, Sedgwick Stat. and Const. Law (2d ed.) 446-450, note a; especially gas company, Bloomfield Gaslight Co. v. Richardson, 63 Barb. 437; sewerage of a city, Hildreth v. Lowell, 11 Gray, 345; aqueduct and water-works companies for supply of cities with water, Reddall v. Bryan, 14 Md. 444; Barden v. Stein, 27 Ala. 164; Lombard v. Steavens, 4 Cush. 60; Mayor, etc. v. Bailey, 2 Denio, 452; park or highway for pleasure, Matter of Central Park, 63 Barb. 282; In re Mount Washington R. R. 35 N. H. 134; all of these held to be for public use.

morals of the citizens." 1 This case is adverse to the whole current of authority on the subject. There was a failure of crops in Kansas; the legislature authorized the towns to raise money for the purpose of providing destitute citizens of such towns with provisions, and grain for seed and feed. It was held that the purpose was not public. It was not for the benefit of the indigent, but of those who have fields to till and stock to care for.2

1 First Municipality v. New Orleans Theater Co. 2 Rob. (La.) 209.

2 State v. Osawkee, 14 Kans. 418.

CHAPTER III.

LIMITATIONS ON IMPOSITION OF LOCAL TAXATION.

§ 26. Equality in the Burden of Taxation.-The first of the maxims of Adam Smith on the subject of taxation is, "The subjects of every State ought to contribute to the support of the government, as nearly as possible, in proportion to their respective abilities;" that is, in proportion to the revenues they enjoy under the protection of the State. In the observation or neglect of this maxim, consists what is called the equality or inequality of taxation.1 Absolute equality is not contemplated by these writers; it is to be "as near as possible;" and the courts, while they have regarded any attempt to practice absolute equality as Utopian, have at the same time recognized the principle stated by these writers, and have endeavored to enforce a practical equality. It is not in the power of the legislature, under the guise of taxation, to give the property of A. to B., or to impose the whole burden of a tax for the State upon one person or upon one county. Such absolute, arbitrary powers have no place in a government regulated by law.

In local taxation, there must be some benefit to the people of the locality not common to all the people of the State; if it be for a town or county it must be for a purpose common to the people of the town or county, and of peculiar benefit to them. The limits of this principle will be examined in this chapter.

§ 27. Nature of Subdivisions of a State, and of the Tax imposed on them.-The subdivision of the State into counties, cities and towns is a question of policy, to be determined by the legislature. These municipal corporations, which exist only for public purposes, may be altered, modified or abolished at pleasure, as they are but parts of the machinery employed to carry on the affairs of the State, over which, and their rights and effects, the State may exercise a general

Smith's Wealth of Nations, 2; Mill's Pol. Economy, 370-372; Walker's Science of Wealth, 335.

See State v. Township Committee of Readington, 36 N. J. L. 66. "An unequal assessment is confiscation, not taxation." Robertson, J., in Lexington v. McQuillan's Heirs, 9 Dana, 513; Rapallo, J., in Gordon v. Cornes, 47 N. Y. 612, 613.

superintendence and control; in their franchises they have no vested rights. They are local governments; and many of the duties which would otherwise devolve on the State are performed by these local governments, such as the making of highways and bridges, the erection of school houses and defraying the expenses of conducting schools, the erection of court houses and jails, the administration of the local government, and the construction of sewers and water-works. These matters it is primarily the duty of the State to provide for; they are for a public or governmental purpose; but the counties, towns or cities receive a benefit from these things beyond that enjoyed by the people of the State generally, and it is not deemed a violation of the principle of equality to impose the burden upon the localities benefited. A road or a school in a county is of some benefit to all the people of a State; all are privileged to travel the road; all are benefited by the education of the people of the State; but the people of the county, who are compelled constantly to travel the road, and whose children attend the school, receive a direct benefit from the road and school, which makes it appropriate that they should bear the burden of providing for such things by their contribution in the form of a tax.2

§ 28. New York Cases, as to Power of Apportionment.—We have heretofore alluded to the opinions of Judges Marshall and Ruggles, which have been relied upon to sustain the proposition that the taxing power is unlimited as to the purposes for which a tax may be imposed by the legislature.3 The opinion of Judge Ruggles has been relied upon to sustain another proposition, that the power of apportioning taxation, or of designating the objects, persons, or localities upon whom the burden shall be imposed, is equally unlimited. Undoubtedly the two are inseparable; the apportionment is but a branch of the taxing power, and there can be no more limit in selecting the objects than in determining the purposes for which taxes shall be raised. Thomas v. Leland is the earliest case. The canal commissioners had fixed upon Whitesboro as the point at which the Chenango canal should connect with the Great Western canal; several individuals entered into bond in the sum of $38,615 to the treasurer of the canal fund, that being the amount of the estimated costs of extending the canal to Utica. The legislature authorized the canal to be carried to that point, and directed a tax to be levied on the owners of real

1 People v. Mayor of Chicago, 51 Ill. 17; People v. Flagg, Church, J., 46 N. Y. 405. Washington Avenue, 69 Penn. St. 353; Agnew, J., pp. 358-360; Merrick v. Inhabitants of Amherst, 12 Allen, 500.

3 Ante, § 12.

4 Thomas v. Leland, 24 Wend. 65.

estate in Utica, to refund the amount of the bond. The act was sustained, on the principle of local benefit, the same as a tax to support the poor, establish schools, build bridges or work the highways.' It was thought that the fact that an individual should volunteer to secure a sum of money, in itself properly leviable as a tax, would not preclude the legislature from resorting by way of a tax to those who are primarily and more justly liable. People v. Mayor of Brooklyn decides that the taxing districts need not be co-extensive with any territorial division of the State, but may be confined to the district benefited. "But there never was any foundation for the saying that local taxation must necessarily be limited by or co-extensive with any previously established district. It is wrong that a few should be taxed for the benefit of the whole; and it is equally wrong that the whole should be taxed for the benefit of a few. No one town ought to be taxed exclusively for the payment of county expenses; and no county should be taxed for the expenses incurred for the benefit of a single town. The same principle of justice requires that, where taxation for any local object benefits only a portion of a city or town, that portion only should bear the burden. The same principle of apportionment has been applied to bridges and turnpike roads. The money paid for their construction and maintenance is re-imbursed by means of tolls. Tolls are delegated taxation; and this taxation is charged and apportioned upon those only who derive a benefit from the original expenditure, and in proportion to that benefit." s In Brewster v. City of Syracuse, a sewer was constructed for a city; the charter limited the amount to be paid to the contract price; an act of the legislature authorized an additional amount to be paid the contractor, to be raised by a tax upon the city. This act was held valid, on the principle" that it was a part of the legitimate exercise of the State's power of taxation to ascertain, subject to no judicial review, the public burdens to be borne and the persons or classes of persons who were to bear them," and in the exercise of this discretion the legislature had imposed this burden on the citizens interested in the improvement, who in justice ought to bear it. Guilford v. Supervisors of Chenango County was a case where Cornell and Clark, commissioners of highways, prosecuted a suit by the direction of the voters of the town, and were defeated and compelled to pay the costs and expenses

124 Wend. 69.

* *

*

People v. Mayor of Brooklyn, 4 N. Y. 419. Ruggles, J., in People v. Mayor of Brooklyn, 4 N. Y. 430, 431. 4 Brewster v. Syracuse, 19 N. Y. 116.

Guilford v. Supervisors of Chenango County, 13 N. Y. 143.

5 Johnson, J., Ib. 118.