authority conferring its exercise. The municipality where the general power is granted can tax all subjects within its jurisdiction not exempt by the laws of the state and subject only to the constitutional limitations upon the exercise of the power.12 In construing the power as granted, it is considered a continuing one and as operating prospectively, never retrospectively.13 The right cannot be granted by a state or the courts to tax when the state itself does not possess either the original power to tax in the manner attempted to be granted or the right itself.1 § 302. The authority. The authority or power to tax being a governmental power 1. Vincent V. Hinsdale County Com'rs, 12 Colo. App. 40; Pratt v. City of Jacksonville, 36 Fla. 550. The delegation to a municipality of the power to fix the rate and provide regulations for the valuation of property does not comply with constitution of Florida art. 9, § 1, which declares that the legislature "shall provide for a uniform and equal rate of taxation and shall prescribe such regulations as shall secure a just valuation of all property." City of Macon v. Central R. & Banking Co., 50 Ga. 620; Spann v. Webster County Com'rs, 64 Ga. 498. If the constitution provides for the assent of voters, a tax levied without this is invalid. Com. v. Milton, 51 Ky. (12 B. Mon.) 212; Wingate v. Sluder, 51 N. C. (6 Jones) 552; McCless v. Meekins, 117 N. C. 34; State v. Haywood County Com'rs, 122 N. C. 661; Smathers v. Madison County Com'rs, 125 N. C. 480; State v. Irvin, 126 N. C. 989. The cases of City of Columbia v. Beasly, 20 Tenn. (1 Humph.) 232, 34 Am. Dec. 646, and Hope v. Deaderick, 27 Tenn. (8 Humph.) 1, 47 Am. Dec. 597, sustain the general proposition that although the authority may be granted it must be exercised in accordance with constitutional provisions. Presidio County V. City Nat. Bank, 20 Tex. Civ. App. 511; Gilkeson v. Frederick County, 13 Grat. (Va.) 577. 13 Wayne v. City of Savannah, 56 Ga. 448. The rule also operates in favor of the municipality. Property holders who have paid illegal taxes either voluntarily or under coercion in former years have no right to set off such payment against present taxes. Ohio & M. R. Co. v. People, 123 Ill. 648, 15 N. E. 276. Third Municipality v. Ursuline Nuns, 2 La. Ann. 611; Municipality No. 3 v. Michoud, 6 La. Ann. 605. 14 Henderson Bridge Co. v. City of Henderson, 173 U. S. 592; Vance v. City of Little Rock, 30 Ark. 435. Courts of the United States can impart no taxing power to a municipal corporation. Kyle v. Malin, 8 Ind. 34; O'Donnell v. Bailey, 24 Miss. 386; Bank of Chester v. Town Council of Chester, 10 Rich. Law (S. C.) 104; City of Nashville v. Thomas, 45 Tenn. (5 Cold.) 600. possessed only in the fullest extent by the sovereign, to be exercised by a subordinate agent, must be expressly given. A municipal corporation in its broad sense has no power to levy taxes or impose license fees, a species of taxation, when not expressly authorized so to do either by its charter or by some general provision of the law.15 Where the authority to tax does not exist, no court has power to issue process compelling its exercise.16 Ordinarily, the legislative branch of government has the exclusive power of taxation and its delegation or repeal must proceed from this branch. The legislature in delegating it should provide for its exercise in an equal and uniform manner.1 The 15 Sanders V. Commissioners of Butler, 30 Ga. 679; City of Independence v. Moore, 32 Mo. 392. 16 Vance v. City of Little Rock, 30 Ark. 435; United States v. City of Burlington, 2 Am. Law Reg. (N. S.) 394. 17 North Missouri R. Co. v. Maguire, 87 U. S. (20 Wall.) 46; Meriwether v. Garrett, 102 U. S. 472; Hagar v. Yolo County Sup'rs, 47 Cal. 222; Coite v. Society for Savings, 32 Conn. 173; Extension of Hancock St., 18 Pa. 26; Bank of Pennsylvania v. Com., 19 Pa. 144; Catlin v. Hull, 21 Vt. 152. City of Richmond v. Richmond & D. R. Co., 21 Grat. (Va.) 604. The power of taxation as conferred upon a municipal corporation is merely a delegated trust. It is not a contract between the state and such subordinate agency to be considered as con ferring upon the latter an absolute power of taxation beyond the contro 1 of the legislature. The grant is, at all times, subject to repeal or modification by the sover eign. 18 United States v. City of New Orleans, 98 U. S. 381. "The position that the power of taxation belongs exclusively to the legislative 18 branch of the government no one will controvert. Under our system it is lodged nowhere else. But it is a power that may be delegated by the legislature to municipal corporations, which are merely instrumentalities of the state for the better administration of the government in matters of local concern. When such a corporation is created, the power of taxation is vested in it as an essential attribute, for all the purposes of its existence, unless its exercise be in express terms prohibited. For the accomplishment of those purposes, its authorities, however limited the corporation, must have the power to raise money and control its expenditure. In a city even of small extent, they have to provide for the preservation of peace, good order and health, and the execution of such measures as conduce to the general good of its citizens; such as the opening and repairing of streets, the construction of sidewalks, sewers and drains, the introduction of water, and the establishment of a fire and police department. In a city like New Orleans, situated on a navigable stream, or on a harbor of a lake or sea, their powers are usually enlarged so as to em power of taxation in a municipal corporation, as a rule, is not general in its nature. Municipal corporations or subordinate corporations are local agencies of the government within a definite locality. The municipal power to tax, therefore, is restricted to community or local purposes.19 General taxes cannot be levied. brace the building of wharves and docks or levees for the benefit of commerce, and they may extend also to the construction of roads leading to it or the contributing of aid towards their construction. The number and variety of works which may be authorized, having a general regard to the welfare of the city or of its people, are mere matters of legislative discretion. All of them require for their execution consider able expenditures of money. Their authorization without providing the means for such expenditures would be an idle and futile proceeding. Their authorization, therefore, implies and carries with it the power to adopt the ordinary means employed by such bodies to raise funds for their execution, unless such funds are otherwise provided. And the ordinary means in such cases is taxation. A municipality without the power of taxation would be a body without life, incapable of acting and serving no useful purpose." City of Mobile v. Dargan, 45 Ala. 310; Security Sav. Bank & Trust Co. v. Hinton, 97 Cal. 214, 32 Pac. 3. A city, the organization of which is authorized by the legislature, may provide in its charter for local taxation. The court holding this power essential to municipal existence. Wells v. City of Savannah, 107 Ga. 1; Sherlock v. Village of Winnetka, 68 Ill. 530; Harney v. Indianapolis, C. & D. R. Co., 32 Ind. 244; Clark v. City of Davenport, 14 Iowa, 494; Byrne v. City of Covington, 15 Ky. L. R. 33, 21 S. W. 1050; City of Alexandria v. White, 46 La. Ann. 449, 15 So. 15; Chicago, St. L. & N. O. R. Co. v. Town of Kentwood, 49 La. Ann. 931; Daily v. Swope, 47 Miss. 367; City of York v. C., B. & Q. R. Co., 76 N. W. 1065. Chicago, B. & Q. R. Co. v. Klein, 52 Neb. 258, 71 N. W. 1069. Under a constitutional provision granting to all "municipal corporations" the power to assess and collect taxes, a township held a municipal corporation. Gest v. City of Cincinnati, 26 Ohio St. 275; State v. Kelly, 45 S. C. 457, 23 S. E. 281. The adoption of a constitutional provision may, how ever, repeal existing legislative authority for the levy and collection of taxes. Werner v. City of Galveston, 72 Tex. 22, 7 S. W. 726, 12 S. W. 159; City of El Paso v. Conklin, 91 Tex. 537, 44 S. W. 988; Kerr v. Woolley, 3 Utah, 456. 19 United States v. City of New Orleans, 98 U. S. 381; Southern R. Co. v. St. Clair County, 124 Ala. 491, 27 So. 23; State v. City of Davenport, 12 Iowa, 335. The duty to levy a special tax, its proceeds to be appropriated for a special purpose, is not performed by a levy of a general tax. Midland Elevator Co. v. Stewart, 50 Kan. 378, construing Kansas laws of 1887, c. 134. McDonald v. City of Louisville, 113 Ky. 425, 68 S. W. 413. The grant of authority to subordinate public corporations to impose taxes H by one for the support, either of the nation, the state, or communities of an equal or inferior grade to itself.20 On the contrary, it is quite generally held that for purely local or municipal uses, the legislature cannot require a subordinate corporation to levy taxes. This principle has been applied to acts attempting to compel municipal authorities to issue bonds for the cost of acquiring and maintaining public parks."1 for their own special local purposes deprives the general assembly of that power. City of New Orleans v. Turpin, 13 La. Ann. 56; Lorie v. Hitchcock, 26 La. Ann. 154; Merrick v. Inhabitants of Amherst, 94 Mass. (12 Allen) 500; Wingate v. Sluder, 51 N. C. (6 Jones) 552; Durach's Appeal, 62 Pa. 491; Hammett v. City of Philadelphia, 65 Pa. 146; Newman v. Justices of Scott County, 37 Tenn. (5 Sneed) 695; Hope v. Deaderick, 27 Tenn. (8 Humph.) 1. Such an act not unconstitutional. Ex parte Schmidt, 2 Tex. App. 196. If a municipality proceed within its lawful power, the courts are not authorized to interfere. Gilkeson v. Justices of Frederick, 13 Grat. (Va.) 577; Foster v. City of Kenosha, 12 Wis. 616. 20 State v. Nelson, 105 Wis. 111. 21 People v. City of Chicago, 51 Ill. 17. "While it is conceded that municipal corporations, which exist only for public purposes, are subject at all times to the control of the legislature creating them, and have, in their franchises, no vested right, and whose powers and privileges the creating power may alter, modify or abolish 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 superintendence and control, we are not of opinion that power, such as it is, can be so used as to compel A city triumphal arches, splendid colums, and perpetual fountains and require in the act creating them, that every owner of property within the city limits should give his individual obligation for his proportion of the cost and impose such costs as a lien upon his property forever? What would be the public judgment of such an act and wherein would it differ from the act under consideration?" Lovingston v. Wider, 53 Ill. 302; People v. Common Council of Detroit, 28 Mich. 228; Blades v. Water Com'rs of Detroit, 122 Mich. 366, 81 § 303. Limitations upon the power. In addition to the general limitations upon the power to tax, as suggested in the preceding section, there will be found special limitations based upon specific grounds either relating to purpose or amount raised. (a) Limitations as to rate or amount. In this country it is the aim of government as well as the desire of the individual that taxation should not result in a confiscation of private property. To secure this end, the constitutions or general statutes of the different states limit the amount of taxation which can be levied either by the government itself or any of its subordinate agencies upon property within its jurisdiction for a specific period of time." This limitation may be designated by a rate per-cent23 or it may N. W. 271. The court in its opinion in this case in part said that it was not within the power of the legislature to compel taxation of city property for local purposes without the consent of the electors of the city, therefore, an act was unconstitutional and void providing for the operation and maintenance of city waterworks without a submission of the question to the voters. 22 City of Cleveland v. United States, 111 Fed. 341. The levy in any one year cannot exceed the amount fixed by law although the levies for previous years have not reached such limit. The average for the series of years not exceeding the rate fixed by law. Hays v. Hogan, 5 Cal. 241; Commissioners of Roads & Revenues v. Porter Mfg. Co. (Ga.) 30 S. E. 547. The constitution of Georgia, art. 7, § 7, par. 1, limiting the power of public corporations to incur debts, is held not to act as a limitation upon their taxing power. Binkert v. Jansen, 94 Ill. 283; People v. Peoria, D. & E. R. Co., 116 Ill. 410; City of Leavenworth v. Norton, 1 Kan. 432; Clark v. City of Davenport, 14 Iowa, 494; Burnes v. City of Atchison, 2 Kan. 454; Columbus Water-Works Co. v. City of Columbus, 48 Kan. 378; Stewart v. Kansas Town Co., 50 Kan. 553; Wattles v. City of Lapeer, 40 Mich. 624; Schneewind v. City of Niles, 103 Mich. 301; Benoist v. City of St. Louis, 19 Mo. 179; State v. Village of Perrysburg, 14 Ohio St. 472; State v. Humphreys, 25 Ohio St. 520; Cummings v. Fitch, 40 Ohio St. 56; State v. Town Council of Beaufort, 39 S. C. 5; In re Limitation of Taxes, 3 S. D. 456, 54 N. W. 417; Bassett v. City of El Paso, 88 Tex. 168. Foster v. City of Kenosha, 12 Wis. 616. Where there is no limitation expressed in the legal organization of a city upon its powers of taxation, the general restriction applies that it is limited in this respect by the object and law of its creation and can only exercise it for legitimate municipal uses. 23 United States v. Town of Cicero, 41 Fed. 83; State v. Southern R. Co., 115 Ala. 250, 22 So. 589; City of Santa Barbara v. Eldred, 95 Cal. |