tax on drays and wagons in proportion to the number of animals used in drawing them, is not uniform.1 And where a railroad is aided by county subscription, and is required to pay all its taxes into a railroad fund created by the act-as to the county school tax-the law is not uniform throughout the State, for as to that the railroad is exempt. A law requiring lands covered with water, used as water-power for mills, to be valued without reference to the increased value arising from the improvements made thereon, to facilitate the use of the water-power, is void for inequality; it produces disproportion in the taxes based upon valuations.

§ 53. Exemptions.—The provision as to uniformity does not prevent the State from exempting from taxation objects of charity and gratitude, the property of churches and charitable institutions, and the tools of mechanics to a limited extent. The tenor of the decisions is, that the rule of equality and uniformity applies to such objects of taxation as may be selected by the legislature as proper to bear the burden; and so long as these objects are affected alike, the fact that other species of property are not included, does not violate the rule. But where one species of property is exempt while others of the same kind are taxed, the exemption is invalid for want of uniformity. The form in which the violation of the rule is clothed cannot help its validity. In California, all solvent debts are taxable as personal property. An act was passed directing that "no mortgage or lien given or held upon real estate, or debt thereby secured, or promissory note secured by mortgage, shall be assessed upon the books of any assessor, State, county or otherwise." It was held that the purpose of this act was to exempt from taxation solvent debts secured by mortgage upon real estate, that it violated the constitutional provision for uniformity of taxation, and that the legislature could not, under pretense of regulating the duties of the assessor, exempt from taxation one species of property required to be taxed, while other property of the same kind was taxed. Whether a State whose Constitution provides for equality and uniformity, could place the whole

1 State v. Endom, 23 La. Ann. 663.

2

Crosby v. Lyon, 37 Cal. 242.

3 Cheshire v. County Commis. 115 Mass. 386. Trustees of M. E. Church v. Ellis, 38 Ind. 3; State v. Mills, 34 N. J. L. 177; Cocley on Const. Lim. 514.

Cooley on Const. Lim. 514, 515, and authorities cited; Hodgson v. New Orleans, 21 La. Ann. 201; State v. Fosdick, Id. 434.

6 Weeks v. Milwaukee, 10 Wis. 242; Brick Co. v. Brewer, 13 Am. Law Reg. 735; People v. McCreery, 34 Cal. 242; Trustees v. McConnell, 12 Ill. 138.

People v. Eddy, 43 Cal. 331; Orleans v. Pierre Nongues, 11 La. Ann. 740. A tax on cows kept by dairymen, is invalid; it should be on all the cows in the district.

burden upon real estate, or upon any other species of property, is a question which has not been raised. All the cases of discrimination which have arisen have been cases in which the legislature had placed the burden upon all property, with certain exceptions, and then had, by subsequent act, discriminated between the objects selected as proper to bear the burden of taxation. The discretion of the legislature in apportioning the burden of taxation is so large that if it does not violate some other provisions of the Constitution, as in the class of cases in chapter 3, it would be going too far, it seems to me, to say that such legislation would violate the rule of equality and uniformity. But in most of the States this is not a practical question, for in connection with the provision that taxation shall be equal and uniform, we find the provisions, that all property shall be taxed according to value, and that no one species of property shall be taxed higher than any other species from which a tax is collected.

The mere omission of property from the roll does not violate the principle of uniformity,' but where the omission is intentional it is otherwise. The power of the legislature to commute taxes is not restrained by the provisions of equality and uniformity. It is a practice very general in most of the States, to require corporations such as banks, railroads, &c., to pay annually into the treasury a certain amount, and to exempt them from the payment of all other State taxes, and sometimes from the payment of all other taxes. It is considered that the State has obtained an equivalent for the amount which would have been obtained in the usual mode. So far as counties are concerned, they have power to tax only such subjects as the legislature may direct, and it is no violation of their rights. In Wisconsin, at one time, a different view was taken of the matter. A tax of one per cent. on the gross earnings of a railroad, in full of all taxes, paid annually into the State treasury, was held invalid. It was thought that uniformity applies to all taxable property, and that it is not preserved by dividing property into classes and taxing each class at the same rate, as one rate for horses and another rate for cows.5 Paine, J.: "It was a common thing for owners of particular kinds of prop

1 Merritt v. Farriss, 22 Ill. 303; Chicago v. Dunham, 55 Ill. 358; High v. Shoemaker, 22 Cal. 363; People v. Gerke, 35 Cal. 677.

10 Wis. 242; 13 Am. Law Mag. 735.

3 Orange & Alex. R. R. v. Alexandria, 17 Gratt. 176.

4 Louisiana State Lottery Co. v. New Orleans, 24 La. Ann. 86; Ill. Cent. R. R. v. County of McLean, 17 Ill. 291; Hunsaker v. Wright, 30 Ill. 146; Board of Supervisors v. Campbell, 42 Ill. 490; People v. Auditor General, 7 Mich. 84; Chicago v. Sheldon, 9 Wall. 50; People v. Barger, 62 Ill. 456; affi'g 17 Ill. 291.

5

Attorney Gen. v. Winnebago Lake & Fox River Plank Road, 11 Wis. 35.

erty to combine to obtain special privileges for their class." The provision of uniformity was intended to meet such cases.

this State, this view seems to be abandoned.1 In Indiana, where the congressional school fund belongs to the people of congressional districts, and as the Constitution of the State makes the school fund of the State include the congressional fund, a tax levied on the counties by the State in unequal amounts, in order to make the whole fund. for a county, including the congressional fund and the fund raised from the county, equal was held valid. Although unequal in form, in reality the burden of taxation for school purposes was made equal and uniform. In Missouri and California, whose constitutions not only provide for equality and uniformity, but that "all property subject to taxation in this State shall be taxed in proportion to its value," and "all property in this State shall be taxed in proportion to its value," it is held that all property over which the State has jurisdiction must be taxed, and not such as the legislature, in their discretion, might select, and that the legislature has no power to exempt any private property in the State."

§ 54. Equal and Uniform as to Privileges.-These provisions, as a general rule, are held to apply to property alone, and not to include taxation on privileges or occupations, or upon the exercise of a civil right, as taking property by devise or descent; and especially is this true when the license required, as a condition precedent to the exercise of the occupation, is imposed, not with reference to revenue, but for the purposes of police. The Constitution of Ohio, art. 12, § 2, provides, that "laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money," &c. The legislature passed an act appointing an inspector of gas companies, at a salary of $3,000. A list of all gas companies was to be furnished the auditor of the State, by the companies annually. The salary was to be assessed and paid into the treasury of the State by the gas light companies in amounts proportionate to their appraised valuation, in returns required by the

1 Kneeland v. Milwaukee, 15 Wis. 454, 691. * Missouri.

* Crow et al. v. State of Missouri, 14 Mo. 237;

2 Adamson v. Warren Co. 9 Ind. 174. • California.

People v. McCreery, 34 Cal. 433.

Slaughter's Case, 13 Gratt. 767, 776; Eyre v. Jacob, 14 Gratt. 422, 433; People v. Coleman, 4 Cal. 48; Aulanier v. Governor, 1 Texas, 665; Adams v. Somerville, 2 Head (Tenn.) 363; Bohler v. Schneider, 42 Ga. 195; Texas Banking & Ins. Co. v. State, 42 Texas, 636; Home Ins. Co. v. City Council of Augusta, 50 Ga. 530.

Thomasson v. State, 15 Ind. 449: Baker v. Cincinnati, 11 Ohio, N. S. 534; New Orleans v. Turpin, 13 La. An. 56; Addison v. Saulnier, 19 Cal. 82.

general statutes. Deputy inspectors were allowed, and special fees for examining the company and testing gas meters and other apparatus, were to be paid by the company, and measures were to be provided at the expense of the company. It was claimed that this act violated the provision of the Constitution just quoted, but it was held to be a valid exercise of the taxing power. The court say: "The Constitution requires all property to be taxed by a uniform rule, but this is rather a charge upon individual corporations and the business in which they are engaged. It is well settled in this State, by authoritative decisions, that local assessments may be made to pay for lands appropriated for streets, and for improvements and repairs of the same, for making ditches and free turnpikes, and charges imposed for licenses to theaters." The case was also likened to the laws imposing charges for inspection of articles of commerce offered for sale. The discovery and application of gas for illuminating purposes, is a thing of recent occurrence, and the act may be regarded as only an extension of the principle of the inspection laws to a new article of commerce.1

Exceptions, Application of the Rule.-Where the provisions are held to apply to privileges, the tax is held invalid unless, as in case of property, it extends to the whole State or district, and applies to all of the class to whom the tax applies. An act, imposing a tax of $500 upon every insurance company and the agency of every foreign insurance company doing business in the city of New Orleans, was held void, because it did not reach all in the State of the same class.2 An ordnance of a police jury imposed a tax on every keeper of powder magazines, who keeps more than fifty pounds of powder. It was held to be not uniform. "There can be no uniformity of taxation on callings where a tax is imposed on some persons for pursuing a certain calling, while others who pursue the same calling are exempt. Those who keep under fifty pounds of powder pay no tax." But where a tax is imposed upon every keeper of a warehouse where produce, goods, wares or merchandise are received on storage, such a tax, being upon all persons engaged in the same business, is valid. So of a tax upon every keeper of a billiard table,5 and of a tax upon a

1 Cincinnati Gas Light Co. v. State, 18 Ohio, N. S. 237, citing Baker v. Cincinnati, 11 Ohio, N. S. 534, the case of license to a theater.

2 State v. Merchants' Ins. Co. 12 La. Ann. 802; New Orleans v. Home Ins. Co. 23 La. Ann. 449.

3

Hyman, J., Parish of Orleans v. Cochran, 20 La. Ann. 373.

4 Hodgson v. New Orleans, 21 La. Ann. 201,

5 Merriam v. The City of New Orleans, 11 La. Ann. 740.

wholesale liquor dealer.1 A license tax on auctioneers, graded by the amount of monthly sales, is valid; it does not violate the rule of uniformity. The legislature of Louisiana imposed a tax of $1,000 on all insurance companies not chartered by the State, and $500 on all chartered by the State. One of the insurance companies from Europe, doing business in the State, claimed that the act violated the provisions for equality and uniformity. It was held that as to that company, the tax was valid. The court say that previous cases in this State hold" that the Constitution has not deprived the legislature of the power of dividing the objects of taxation into classes; it merely requires that the burden be equal upon all those included in the same class. The class of insurance companies liable to the $1,000 tax under the statute, is entirely different from that liable to the $500 tax. If the State has thought fit to recognize foreign charters of incorporation, to the extent of permitting foreign corporations to transact business in their corporate names, through agents within our limits, the legislature has the undoubted right to attach what conditions it thought fit to the privilege. It imposes an equal burden upon agents of all foreign insurance companies. It does not discriminate between citizens of this State and other States, but if it did the defendant, an agent of an English corporation, cannot invoke the inhibitory provision of the Constitution of the United States." This view as to corporations, not only of foreign countries but of other States of the Union, is sustained by the courts of other States, and by the Supreme Court of the United States, and the further principle announced that corporations are not citizens in the sense of the provision of the Constitution of the United States, preserving to the citizens of each State the privileges and immunities of citizens of the several States.5

The substance and not the form of the tax is to be regarded in ascertaining whether the tax is upon property, or upon a privilege connected therewith. A tax on each and every person keeping a dairy in certain limits, of two dollars annually for each cow, is a tax on property while professing to tax the occupation. It is really imposed upon cows kept by dairymen within certain limits. The tax is not

Straub v. Gordon, 27 Ark. 625.

3 State v. Fosdick, 21 La. Ann. 434.

2 Sacramento v. Crocker, 16 Cal. 119.

State v. Ogden and State v. Lathrop, 10 La. Ann. 402.

Slaughter's Case, 13 Gratt. 767; Ducat v. Chicago, 48 Ill. 172; s. c. 10 Wall. 410; Paul v. Virginia, 8 Wall. 168; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; contra, Franklin Ins. Co. v. State, 5 West Va. 349, holding a tax of 3 per cent. on all premiums, collected and uncollected, of insurance companies, not imposed on other corporations in the State, void as not being equal and uniform. The reasoning of the court is very unsatisfactory.