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from one person, in the expectation that he will indemnify himself at the expense of others.”? In the first class are included the polltax, labor on highways, military service, income tax, property tax, and perhaps the stamp tax; in the second, customs or taxes upon importations or exportations, collected through the custom houses, and paid by the importer or exporter. Excise duties, the opposite of custom house duties, are laid upon articles of domestic production, and paid first by the producer. In this class should be placed licenses, or special taxes paid for the privilege of exercising a particular trade, profession or occupation. This is a species of excise tax.?

$ 4. Taxes : what and by whom imposed.—“Taxes are burdens or charges imposed by the Legislature upon persons or property to raise money for public purposes, or to accomplish some governmental end." 3 The power to impose taxes is vested in the representatives of the people, in the legislative branch of government. In England, at one time, the king claimed the right to levy taxes. It was resisted with great vigor; the contest continued through a series of years, and was finally definitely settled by the bill of rights. These principles our ancestors brought with them to this country, as a part of their birth-right as Englishmen; the violation of the first of these principles, “taxation without representation,” was one of the immediate causes of the revolution. The other is firmly engrafted as a principle of American constitutional government, and is found in express words in the constitutions of nearly all the States. Although the taxing power may be exercised by counties, cities or smaller districts of the State, the source of the power is the legislature..

$ 5. Taxes : Different Senses in which used.It is said sometimes by the courts, that local assessments imposed upon property benefited, as in the opening, grading and paving of streets, are not taxes; that labor on the highways is not a tax; that an impost, or duty on imported goods is not a tax. But an examination of the cases in which these expressions are used will show that it was not claimed that these burdens imposed upon the citizen were not imposed in the exercise of the taxing power, but merely that the word tax, or taxes, as used in some statute, or in the Constitution of a State, was not intended to include local assessments, or labor on the highways, or imposts; it was a question of intention to be deduced from the instrument in which the word tax is used.

1 Walker's Science of Wealth, 338, 348.

o Id. 339, 345. 3 Dillon, J., Hanson v. Vernon, 27 Iowa, 47, and numerous authorities cited, legal and scientific. It is true that this case has been overruled in Stewart v. Polk, 30 lowa, 9; but not as to any matter affecting this definition of Judge Dillon. It was overruled as to a deduction made by the court, that a subscription to a railroad, to be paid by taxation of a county or city, was not for a public purpose. It is admitted in that and all other cases, that the purpose must be public. Sharpless v. Mayor of Philadelphia, 21 Penn. St. 168; Curtis v. Whipple, 24 Wis: 535; Williams v. School Directors, 33 Vt. 271; Louisville & Nashville Railroad Co, v. County Court of Davidson, 1 Sneed, 663 ; Freeland v. Hastings, 10 Allen, 579; Hammett v. Philadelphia, 65 lenn. St. 145, 152; Allen v. Jay, 60 Me. 124; Blackwell's Tax Titles, 1; Cooley on Const. Limitations, 479.

4 Hallam's Const. Hist. ed. 1851, Ilarper Bros., from 5th London ed. pp. 183, 225, 248-253, 548, 549.

5 Pope v. Phifer et al. 3 Heisk. (Tenn.) 683, and cases as to taxation. Indians not entitled to privileges of citizens.

Cooley's Const. Limitations, 3d ed. p. 618, and authorities cited.

$ 6. E.xtent of Taxing Power.— The power of taxation, being an incident of sovereignty, is co-extensive with that of which it is an incident. All subjects over which the sovereign power of a State extends are objects of taxation. “ These subjects are persons, property and business. Whatever form taxation may assume, whether as duties, imposts, excises or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured forms, and in its various transmutations. The amount of the tax may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted in professions, in commerce, in manufactories and in transportation. The power of the State, as to the mode, form and extent of taxation, is unlimited, where the subjects to which it applies are within her jurisdiction.”. A government de facto may levy and collect taxes of its subjects ; but when succeeded by the government de jure, the taxes assessed by the government de facto will not be enforced. Those who have paid the government de facto have no remedy.

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1 Chicago v. Larned, 34 III. 203; Garrel v. St. Louis, 25 Mo. 505; Weeks v. Milwaukee, 10 Wis. 242; Williams v. Detroit, 2 Mich. 566; Foster v. Com'rs of Wood Co. 9 Ohio, N. S. 540; Cooley's Const. Limitations, 3d ed. 498, 499, and list of authorities cited; Dillon on Mun. Corp. vol. 2, p. 719; Mayor of New York v. Brooklyn, 4 N. Y. 424; Overseers of Amenia v. Overseers of Stanford, 6 Johns, 92, construction of a statute giving a settlement on payment of taxes for two years; the act showed the word used in the sense of taxes in money, not labor; Mayor of Mobile v. Dargan, 45 Ala. 310; Brown v. Maryland, 12 Wheat. (Curtis' Cond. U. S.) 279. Impost not used in the sense of tax in the Constitution of the United States, so as to prevent a State from taxing imported goods, where the packages are broken and mixed with other property of the State ; Sharp v. Spier, 4 Hill, 76. Brooklyn, by charter, has authority to sell land for "taxes” imposed thereon, Assessments to erect a pump and dig a well are not taxes in the sense of the charter. Yancey v. New Manchester Nanuf. Co. 33 Ga. 622. The character of the tax is not changed by the proceeds being appropriated to a specific object.

? McCulloch v, Maryland, 4 Wheat. (Curtis Cond. U. S.) 428; Field, J., in State Tax on Foreign-held Bonds, 15 Wall. 319.

* O'Brien v. Savannah, 41 Ga. 331.

$ 7. Property Tax: Is it upon Person or Property ?—The tax is a contribution required of its citizens by the State, and when it is measured, as to its amount, by the value or the productiveness of the property, it is still a tax on the person, and there is a personal liability on the person assessed with the tax. “The individual, and not his property, pays the tax. The property is resorted to for the purpose of ascertaining the amount of the tax with which the owner must be charged.”i The tax is imposed upon the person of the owner on account of his ownership of the property. The origin of the modern land tax in England results from a compounding by the tenant of the knight's fee, with the king for the personal military service due him. 3 There is an exception to this general rule in local assessments, or taxation on the benefits conferred. This is a species of taxation in rem ; it proceeds upon the idea that certain real estate is increased in value by a public improvement, and that it is just that a portion of the expense of the improvement should be borne by the property peculiarly benefited."

$ 8. Distinction : Eminent Domain and Taxation.— The power of the State over private property, for the purposes of police, public health, and public morals, and the taking of such property, when the interest of the public requires it, is called the power of eminent domain." The distinction between the power of taxation and the power of eminent domain is clear and well defined. Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain, is taken not as the owner's share or contribution to a public burden, but as so much beyond his share. The current of authority on this subject is unbroken."

$ 9. Police Power and Taxing Power.—The police power of the State, in its exercise, is not so easily distinguished from the taxing power. It is to this power that quarantine and health laws, and inspection laws, are referred; the source of this power is the power


Green v. Craft, 28 Miss. 70, was a tax sale of land. There was a description of it on the roll, its value per acre, and the total value and amount of tax, but no name of owner, and the sale was held void.

Grover, J., in Rundell v. Lakey, 40 N. Y. 617.

3 2 Sharswood's Blackstone, 310 ; Hallam’s Const. Hist. ed. 1851, Harper Bros. pp. 410, 548, 549.

Creighton v. Manson, 27 Cal. 613; Taylor v. Palmer, 31 Id. 240; Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Id. 44; overruling St. Louis v. Clemens, 36 Id. 467.

Sedgwick on Stat. and Const. Law, 2d ed. 423, 424.

• People v. Mayor of Brooklyn, 4 N. Y. 424; Hammett v. Philadelphia, 66 Penn. St. 152 ; Booth v. Woodbury, 32 Conn. 130; Sanborn v. Rice, 9 Mino. 273.

Chicago v. Larned, 34 III. 203 ; Woodbridge v. Detroit, 8 Mich. 278. In these cases the court confound these two distinct powers.

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of sovereignty, the power of the State to govern men and things within the limits of its dominion.' As a general rule, police regulations are not made with a view to raising revenue, and the amounts paid by those to whom they apply are such only as will be sufficient to defray tbe expenses of enforcing the regulations. But “when owners of urban property are required to construct and keep in repair, and free from obstructions, the sidewalks in front of it, or owners of city lots are required to pay the expense of sewers constructed in front thereof," ? the difference between the two is hard to be perceived, and we feel inclined to rest both powers upon the sure foundation of Judge Taney, the sovereignty of the State to govern men and things within the limits of its dominion.

$ 10. Power of Courts.—The power of the courts to declare void an act of the legislature, in the absence of express constitutional limitations, is an exceedingly delicate one, and should be exercised with the greatest caution; but of its existence there can be no doubt. It is a conceded principle as to the States of the American Union, that all sovereignty resides in the people. This sovereignty is distributed among the different departments of government-legislative, executive, and judicial. It results from the nature of this government that the power of the legislature is not unlimited. It cannot exercise executive or judicial powers. Each department, in the absence of express limitations, is supreme while exercising its proper functions; neither can exercise the powers of the other. So strongly is this principle impressed upon the American people, that one of the new States has embodied it in express terms in its fundamental law. The Constitution of Minnesota distributes the powers of government into legislative, executive, and judicial, and declares “ that no person belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except in the instances provided for in the Constitution.” 4

$ 11. English and American Courts.—At an early day, the English courts undertook to declare void acts of parliament, on the sole ground that they were repugnant to natural justice or morality. In Day v. Savage (Hob. 85), where a custom of the city of London was pleaded, and it was claimed by the defendant that the custom

Taney, J., in License Cases, 5 How. (Curtis' Cond. U. S.) 525.

Cooley on Const. Limitations, 3d ed. p. 588, notes 3 and 4, and authorities. This subject will be examined in more detail, under the powers of municipal corporations when exercising the delegated powers of taxation or police.

Sedgwick's Stat, and Const. Law, 2d ed. 132-137, 151, 152, and authorities cited. 4 Sanborn v. Rice, 9 Minn, 273.

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was, in such cases, to refer the issue taken upon such plea to the mayor, &c., of the city of London to certify the custom, the court held, that, although the custom was confirmed by parliament, yet an act of parliament made against “natural equity,” as to make a man a judge in his own case, is void in itself. The later cases do not question the supremacy of parliament.' In America, however, there has been a disposition to adhere to the earlier English cases.? The reason of the difference is manifest. In England, the encroachments upon private right were made by the executive, often supported by pliant judges; the great battle for private right and individual liberty was fought by the house of commons, and when these were placed upon a firm foundation, every Englishman instinctively regarded parliament as the great bulwark against oppression. But, in this country, the danger to private right and individual liberty has been that legislatures, influenced by popular passion and prejudice, or controlled by combinations of vicious men, should disregard everything that opposed their wills. And the courts have been looked to by the people as a protection from arbitrary acts of the legislature. While this is true, it will be found that the cases which are referred to do not sustain so broad a proposition as is laid down in Hobart. Where the act is clearly a judicial act—where it appropriates private property for public use without compensation, or appropriates private property for a private purpose in any manner, where it assesses taxes for a private purpose—the courts do not hesitate to hold the act void.

$ 12. Opinions of Marshall and Ruggles, JJ.–Taxes can only be imposed for a public purpose; they cannot be imposed for a private purpose. There are strong expressions to be found in many cases which scem to favor the idea that the taxing power is without limit, so far as the control of the courts is concerned. The authority quoted is the opinion of Judge Marshall in McCulloch v. Maryland, and of Judge Ruggles in People v. Mayor of Brooklyn.“ “ The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the government acts upon its constituents. This is, in general, sufficient security against erroneous and oppressive taxation. The people of the State, therefore, give to their government a right of taxing themselves and their prop


Sedgwick’s Stat, and Const. Law, 2d ed. 125, 127.

? Id. 128-130. • Id. 151, 152; see for rules on the subject, Robertson, J., in Lexington v. McQuillan's Heirs, 9 Dana, 613; Black, J., in Sharpless 1. Mayor of Philadelphia, 21 Penn. St. 168, 169; People v. Batchellor, 63 N. Y. 128; Mayor and Council of Newark v. State, July No. Am. Law Reg. 1874, • 4 Wheat. (Curtis' Cond. U. S.) 434.

5 4 N. Y. 426, 427.

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