THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 SELECTED CASES 
 
 LAW OF TAXATION 
 
 BDITED BY 
 
 FRANK J. GOODNOW 
 
 fW 
 
 EATON PROTMSOR or ADMINISTRATIYB LAW IN COLUMBIA UKIYUMXY
 
 COPYRIGHT 1905 
 
 BT 
 
 CALLAQHAN AND COMPANY. 
 
 .
 
 PREFACE 
 
 The editor has in this book attempted to collect cases which will 
 illustrate the fundamental principles of the law governing the assess- 
 ment and collection of taxes. As the law upon this subject is to so 
 high a degree the result of the action of legislative bodies, and is in a 
 continual state of change, it has been deemed inexpedient to endeavor 
 to set forth the positive law of any particular state. One of the neces- 
 sary consequences of this method of treatment has been the inclusion 
 of a comparatively large number of cases involving constitutional 
 questions. Constitutional questions in taxation are, however, of such 
 supreme importance in this country that it has been thought that the 
 great amount of space devoted to them will add to rather than detract 
 from the value of the book. 
 
 As this collection of cases has been made with the needs of the 
 student of the subject primarily in view, it has been deemed advisable 
 to follow, in the order in which the cases chosen have been arranged, 
 the presentation of the law to be found in the standard text on the 
 subject, viz., "A Treatise on the Law of Taxation etc." by the late 
 Judge Cooley. The adoption of this method of arrangement has in- 
 volved a treatment of the subject based on the most important opera- 
 tions necessary for the assessment and collection of the taxes rather 
 than upon the different kinds of taxes. The index by which the cases 
 are accompanied will, however, refer the enquirer to the cases treating 
 of the particular kind of tax as to which he desires information, and 
 the attempt has been made to select cases which treat to some degree 
 at least of almost every kind of tax which it is customary for either 
 the federal government or that of the states, or any of their local or- 
 ganizations to levy. 
 
 Although no attempt has been made to accompany the cases selected 
 by exhaustive notes, brief annotations have been appended to the cases 
 where the editor has deemed it necessary. 
 
 Finally, it is to be noted that portions of the statements of facts 
 and of the opinions have been omitted wherever such omission has 
 been felt to be either necessary to confine the application of the case 
 to the point of law sought to be illustrated, or to be possible with due 
 regard to the desire to have the case comprehensible to the student. 
 
 FRANK J. GOODNOW. 
 
 Columbia University, August, 1905. 
 
 iii
 
 TABLE OF CONTENTS 
 
 CHAPTER I. 
 THE NATURE OF TAXES. 
 
 FAOB. 
 I. TAXES NOT DEBTS. 1 
 
 Peirce v. Boston, 3 Metcalf (Mass.) 520. 
 Shaw v. Peckett, 26 Vermont 482. 
 
 II. SUIT FOR COLLECTION. 
 
 City of Camden v. Allen, 2 Dutcher (N. J.) 398. 
 Meredith Y. United States, 13 Peters 486. 
 
 CHAPTER IT. 
 
 THE NATURE OF THE POWER TO TAX. 
 I. THE TAXING POWER A LEGISLATIVE POWER. 10 
 
 People v. Coleman, 4 Cal. 46. 
 People v. Mayor, 4 New York 419. 
 Veazie Bank v. Fenno, 8 Wallace (U. S.) 533. 
 Rees v. Watertown, 19 Wallace (U. S.) 107. 
 
 II. DELEGATION OF THE TAXING POWER. 
 
 1. To Private Corporations. 27 
 Cypress Pond &c. Company v. Hooper, 2 Metcalf e (Ky.) 350. 
 
 2. To Municipal Corporations. 80 
 Ex parte The City Council of Montgomery, 64 Ala. 463. 
 
 Baldwin v. City Council, 53 Alabama 437. 
 State v. Sickles, 4 Zabriskie (N. J.) 125. 
 Holt's Appeal, 5 Rhode Island 603. 
 Williamson v. New Jersey, 130 U. S. 189. 
 State v. City of New Orleans, 37 La. Ann. 16. 
 
 III. ALIENATION OF THE TAXING POWBB. 
 
 1. Statutory Exemptions from Taxation. 43 
 
 Christ Church v. County of Philadelphia, 24 Howard (U. S.) 300. 
 New Jersey v. Wilson, 7 Cranch (U. S.) 164.
 
 Vi CONTENTS. 
 
 , "" 
 
 PAGE. 
 
 2. Exemptions Contained in Charters. 48 
 Home of the Friendless v. Rouse, 8 Wallace (U. S.) 430. 
 Covington v. Kentucky, 173 United States 231. 
 
 CHAPTER III. 
 
 LIMITATIONS OF THE TAXING POWER BY PARAMOUNT 
 
 LAW. 
 
 I. EFFECT OF THEORY OF FEDERAL GOVERNMENT. 
 
 1. General Principle. 56 
 
 M'Culloch v. Maryland, 4 Wheaton 316. 
 Carpenter v. Snelling, 97 Massachusetts 452. 
 Collector v. Day, 11 Wallace (U. S.) 113. 
 
 2. Taxation of Government Bonds. 64 
 
 Weston v. Charleston, 2 Peters 449. 
 Bank of Commerce v. New York City, 2 Black 620. 
 Home Insurance Co. v. New York, 134 United States 594. 
 Plummer v. Coler, 178 United States 114. 
 Pollock v. Farmers &c. Company, 157 United States 429. 
 
 3. Taxation of Government Property. 85 
 Van Brocklin v. Tennessee, 117 United States 151. 
 
 United States v. Baltimore & Ohio Railroad Company, 17 Wallace 
 
 (U. S.) 322. 
 
 II. TAXES ON COMMERCE. 
 
 1. State Taxation of Interstate and Foreign Commerce. 93 
 Robbins v. Shelby County Taxing District, 120 United States 489. 
 Case of the State Freight Tax, 15 Wallace (U. S.) 232. 
 Leloup v. Mobile, 127 United States 640. 
 Pickard v. Pullman &c. Co., 117 United States 34. 
 Osborne v. Florida, 164 United States 650. 
 Brown v. Houston, 114 United States 622. 
 Western Union Telegraph Company v. Borough of New Hope, 187 
 
 United States 419. 
 
 State Tax on Railway Gross Receipts, 15 Wallace (U. S.) 284. 
 Philadelphia & Southern Co. v. Pennsylvania, 122 U. S. 326. 
 Ratterman v. Western Union Telegraph Co., 127 United States 411. 
 
 2. State Taxation of Imports. 133 
 
 Brown v. Maryland, 12 Wheaton 419. 
 Cook v. Pennsylvania, 97 United States 566.
 
 CONTENTS. vil 
 
 PAGE. 
 
 Waring v. Mayor, 8 Wallace (U. S.) 110: 
 
 Woodruff v. Parham, 8 Wallace (U. S.) 123. 
 
 People v. Compagnie Generale &c., 107 United States 59. 
 
 3. Tonnage Taxes. 165 
 
 State Tonnage Tax Cases, 12 Wallace (U. S.) 204. 
 
 4. Taxes on Exports. 173 
 
 Fairbank v. United States, 181 United States 283. 
 III. DUE PROCESS OF LAW, ETC. 
 
 1. Hearing Necessary. 179 
 
 County of San Mateo v. Southern Pacific Railroad Company, 13 Fed. 
 Rep. 722. 
 
 2. Vested Rights. 184 
 
 Orr v. Oilman, 183 United States 278. 
 
 3. Equal Protection of the Laws. 189 
 
 County of Santa Clara v. Southern Pac. R. R. Co., 18 Fed. Rep. 385. 
 Magoun v. Illinois Trust &c. Bank, 170 United States 283. 
 
 IV. DIRECT TAXES. 202 
 
 Springer v. United States, 102 United States 586. 
 Pollock v. Farmers &c. Company, 158 United States 601. 
 
 V. UNIFORMITY THROUGHOUT UNITED STATES. 214 
 
 Knowlton v. Moore, 178 United States 41. 
 Dooley v. United States, 183 United States 151. 
 
 CHAPTER IV. 
 THE PURPOSES FOR WHICH TAXES MAY BE LAID. 231 
 
 Loan Association v. Topeka, 20 Wallace (U. S.) 655. 
 
 Lowell v. City of Boston, 111 Massachusetts 454. 
 
 United States v. Realty Company, 163 United States 427. 
 
 CHAPTER V. 
 THE PURPOSE MUST PERTAIN TO THE DISTRICT TAXED. 
 
 I. DISCRETION OF LEGISLATURE. 251 
 
 Gordon v. Comes, 47 New York 608. 
 Thomas v. Leland, 24 Wendell (X. Y.) 65. 
 
 II. JURISDICTION OVER PROPERTY. 257 
 
 St. Louis v. The Ferry Company. 11 Wallace (U. S.) 423. 
 Savings &c. Society v. Multnomah Co., 169 United States 421.
 
 yiii , CONTENTS. 
 
 PAOB. 
 
 New Orleans v. Stempel, 175 United States 309. 
 Kirtland v. Hotchkiss, 100 United States 491. 
 Miller v. Pennsylvania, 111 Pa. St. 321. 
 Estate of Handley, 181 Pa. St. 339. 
 Matter of Swift, 137 New York 77. 
 State v. Dalrymple, 70 Maryland 294. 
 
 CHAPTER VI. 
 EQUALITY AND UNIFORMITY OF TAXATION. 
 
 I. INDIVIDUAL DISCRIMINATION. 282 
 
 State .v. Township Committee, 7 Vroom (N. J.) 66. 
 
 Oilman v. Sheboygan, 2 Black 510. 
 
 Matter of Pell, 171 New York 48. 
 
 Supervisors v. C. B, & Q. R. R. Co., 44 Illinois 229. 
 
 II. POWER OF EXEMPTION. 299 
 
 California v. McCreery, 34 California 432. 
 People v. Campbell, 93 New York 196. 
 Matter of Mayor &c., 11 Johnson 77. 
 
 CHAPTER VII. 
 OFFICIAL ACTION IN MATTERS OF TAXATION. 304 
 
 Smith v. Messer, 17 New Hampshire 420. 
 Snell v. Fort Dodge, 45 Iowa 564. 
 
 CHAPTER VIII. 
 CONSTRUCTION OF TAX LAWS. 307 
 
 Cornwall v. Todd, 38 Connecticut 443. 
 People v. Supervisors, 51 New York 401. 
 Torrey v. Inhabitants, 21 Pickering 64. 
 Price v. Mott, 52 Pa. St. 315. 
 Drexel v. Commonwealth, 46 Pa. St. 31. 
 
 CHAPTER IX. 
 CURING DEFECTS IN TAX PROCEEDINGS. 320 
 
 McCready v. Sexton, 29 Iowa 356. 
 Matter of Sackett Street, 74 New York 95. 
 Parish v. Golden, 35 New York 462. 
 Gibson v. Bailey, 9 New Hampshire 1H8.
 
 CONTENTS. ix 
 
 CHAPTER X. 
 
 LISTING OF PERSONS AND VALUATION OF ESTATES FOK 
 
 TAXATION. 
 
 PAGE. 
 
 I. THE NATURE OF A ASSESSMENT. 334 
 
 Matter of McPherson, 104 New York 306. 
 City of Tampa v. Kaunitz, 39 Florida 683. 
 Felsenthal v. Johnson, 104 Illinois 21. 
 Matter of Cager, 111 New York 343. 
 Mygatt v. Washburn, 15 New York 316. 
 People v. Forrest, 96 New York 544. 
 Commonwealth v. Freedley's Executors, 21 Pt. St. 33. 
 
 II. TAX DOMICIL. 351 
 
 Boreland v. Boston, 132 Massachusetts 89. 
 Pennsylvania v. Ravenel, 21 Howard (U. S.) 104, 
 Bell v. Pierce, 51 New York 12. 
 
 III. LIABILITY OF CORPORATIONS. 359 
 
 Middletown Ferry Co. v. Middletown, 40 Connecticut 65. 
 Western Transportation Co. v. Scheu, 19 New York 408. 
 People v. Wemple, 117 New York 136. 
 People v. Equitable Trust Co., 96 New York 387. 
 Commonwealth v. N. Y., L. E. & W. R. R. Co., 129 Pa. Si 463. 
 People v. Horn Silver Mining Co. 105 New York 76. 
 Horn Silver Mining Co. v. New York, 143 United State* 305. 
 
 IV. SITUS OF PROPERTY. 379 
 
 People v. Commissioners, 23 New York 224. 
 People v. Smith, 88 New York 576. 
 
 Pullman Palace Car Co. v. Pennsylvania, 141 United States 18. 
 Adams Express Company v. Ohio State Auditor, 165 U. S. 194. 
 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196. 
 
 V. TAXATION OF CORPORATE STOCK. 410 
 
 Belo v. Commissioners, 82 North Carolina 415. 
 Dyer v. Osborne, 11 Rhode Island 321. 
 State v. Branin, 3 Zabriskie (X. J.) 484. 
 
 Tappan v. Merchants National Rank. 19 Wallace (U. S.) 490. 
 Pelton v. National Bank, 101 United States 143. 
 
 VI. ASSESSMENT TO OWNER. 427 
 
 State v. Williston, ?0 Wisconsin 240. 
 Cruger v. Dougherty, 43 New York 107.
 
 X, CONTENTS. 
 
 PAGE. 
 
 Van Voorhis v. Budd, 39 Barbour (N. Y.) 479. 
 Tyler v. Inhabitants, 6 Metcalf (Mass.) 470. 
 
 VII. ASSESSMENT or SEPARATE PARCELS. 436 
 
 County Commissioners v. Union Mining Company, 61 Maryland 547. 
 Brown v. Hays, 66 Pa. St. 229. 
 Woodside v. Wilson, 32 Pa. St. 52. . 
 Boeworth v. Danzien, 25 California 297. 
 
 VIII. METHOD OF VALUATION. 447 
 
 Hersey v. Board &c., 37 Wisconsin 75. 
 State v. Platt, 24 N. J. L. 108. 
 People v. Coleman, 126 New York 433. 
 People v. Barker, 146 New York 304. 
 
 IX. EQUALIZATION. 465 
 
 People v. Salomon, 46 Illinois 333. 
 People v. Sacramento Co., 59 Cal. 321. 
 
 CHAPTER XI. 
 THE COLLECTION OF THE TAX. 
 
 I. DISTRESS AND SALE. 474 
 
 McMillen v. Anderson, 95 United States 37. 
 Donald v. McKinnon, 17 Florida 746. 
 Daniels v. Nelson, 41 Vermont 161. 
 Sheldon v. Van Buskirk, 2 New York 473. 
 Brackett v. Vining, 49 Maine 356. 
 
 II. LIENS AND FORFEITURES.. 482 
 
 Cone v. Wilson, 14 Indiana 465. 
 Henderson's Distilled Spirits, 14 Wallace (U. S.) 44. 
 Albany Brewing Co. v. Meriden, 48 Connecticut 243. 
 King v. Mullins, 171 United States 404. 
 
 III. ARREST AND IMPRISONMENT. 497 
 
 Palmer v. McMahon, 133 United States 660. 
 Commonwealth v. Byrne, 20 Grattan (Va.) 165. 
 
 CHAPTER XII. 
 .THE SALE OF LAND FOR UNPAID TAXES. 
 
 I. WHEN LAND MAY BE SOLD. 507 
 
 Brown v. Veazie, 25 Maine 359. 
 Slater v. Maxwell. 6 Wallace (U. S.) 268. 
 Parker v. Overman, 18 Howard (U. S.) 137.
 
 CONTENTS. li 
 
 PAGE. 
 
 II. REDEMPTION. 514 
 
 Gault's Appeal, 33 Pa. St. 94. 
 
 Bennett v. Hunter, 9 Wallace (U. S.) 326. 
 
 III. EFFECT OF TAX DEED. 522 
 
 Turner v. Smith, 14 Wallace (U. S.) 553. 
 Williams v. Payton's Lessee, 4 Wheaton 77. 
 
 CHAPTER XIII. 
 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 I. POLICE AND TAXING POWER. 529 
 
 Youngblood v. Sexton, 32 Michigan 406. 
 
 II. WHAT Is A PRIVILEGE. 534 
 
 Portland Bank v. Apthorp, 12 Massachusetts 252. 
 State v. Schlier, 3 Heiskell (Tenn.) 281. 
 Collector v. Beggs, 17 Wallace (U. S.) 182. 
 
 III. LOCAL TAXATION. 543 
 
 Burlington v. Putnam Insurance Company, 31 Iowa 102. 
 Mayor v. Second Avenue R. R. Co., 32 New York 261. 
 Newton v. Atchinson, 31 Kansas 151. 
 Ould v. Richmond, 23 Grattan (Va.) 464. 
 
 IV. REVOCATION OF TAX LICENSE. 562 
 
 Metropolitan Board v. Barrie, 34 New York 657. 
 People v. Board, 59 New York 92. 
 
 CHAPTER XIV. 
 TAXATION BY SPECIAL ASSESSMENTS. 
 
 I. LEGISLATIVE DISCRETION. 566 
 
 Litchfield v. Vernon, 41 New York 123. 
 Hammett v. Philadelphia, 65 Pa. St. 146. 
 State v. Newark, 3 Dutcher (N. J.) 186. 
 
 II. METHODS OF ASSESSMENT. 577 
 
 French v. Barber Asphalt. &c. Co., 181 United States 324. 
 Washington Avenue, 69 Pa. St. 352. 
 
 III. POWERS OF LOCAL AUTHORITIES. 587 
 
 Wright v. Chicago, 20 Illinois 252. 
 Philadelphia v. Pennsylvania Hospital, 143 Pa. St. 367. 
 McChesney v. Hyde Park, 151 Illinois 634. 
 McChesney v. Chicago, 171 Illinois 253.
 
 Xii CONTENTS. 
 
 F1.01. 
 
 IV. REGULARITY OF PROCEEDINGS. 595 
 
 Merritt v. Kewanee, 175 Illinois 537. 
 
 Whiteford Township v. Probate Judge, 53 Michigan 130. 
 
 Partridge v. Lucas, 99 California 519. 
 
 CHAPTER XV. 
 ENFORCING OFFICIAL DUTY. 603 
 
 People v. Campbell, 93 New York 196. 
 
 People v. Salomon, 46 Illinois 333. 
 
 People v. Supervisors, 51 New York 401. 
 
 Rees v. Watertown, 19 Wallace (U. S.) 107. 
 
 State v. Xew Orleans, 37 La. Ann. 16. 
 
 State v. Township Committee, 7 Vroom (N. J. L.) 66. 
 
 State v. Williston, 20 Wisconsin 240. 
 
 CHAPTER XVI. 
 
 THE REMEDIES FOR WRONGFUL ACTION IN TAX PRO- 
 CEEDINGS. 
 
 I. REFUNDING TAXES. 604 
 
 Cary v. Curtis, 3 Howard (U. S.) 236. 
 De Lima v. Bidwell, 182 United States 1. 
 Wright v. Blakeslee, 101 United States 175. 
 Dooley v. United States, 182 United States 222. 
 
 II. REMEDIES AGAINST ASSESSMENTS. 
 
 I. Certivrari. 628 
 
 People v. Trustees, 48 New York 391. 
 People v. Carter, 109 New York 576. 
 
 II. STATUTORY APPEAL. 630 
 
 Manchester Mills v. Manchester, 57 New Hampshire 309. 
 Passavant v. United States, 148 United States, 214. 
 State of Nevada v. Central Pac. R. R. Co., 7 Nevada 99. 
 
 III. EQUITABLE REMEDIES (INJUNCTION). 640 
 
 Dows v. Chicago, 11 Wallace (U. S.) 10a 
 Sage v. Fifield, 68 Wisconsin 546. 
 Snyder v. Marks, 109 United States 189. 
 
 IV. ACTIONS AGAINST TAX OFFICMS. 649 
 
 Brackett v. Vining, 49 Maine 356. 
 Gordon v. Comes, 47 New York ti08.
 
 CONTENTS. xiii 
 
 1MB. 
 Mygatt v. Washburn, 15 New York 316. 
 
 Price v. Mott, 52 Pa. St. 315. 
 
 Shaw v. Peckett, 26 Vermont 482 
 
 Sheldon v. Van Buskirk, 2 New York 473. 
 
 Van Voorhis v. Budd, 39 Barbour (N. Y.) 479. 
 
 V. REPLEVIN. 649 
 
 Carpenter v. Snelling, 97 Massachusetts 452. 
 Daniels v. Nelson, 41 Vermont 161. 
 
 VI. HABEAS CORPUS. 649 
 
 Ex parte City Council of Montgomery, 64 Ala. 463. 
 Commonwealth v. Byrne, 20 Grattan (Va.) 165. 
 
 VII. ACTION TO RECOVER POSSESSION OF PROPERTY SOLD FOR NON- 
 PAYMENT OF TAXES. 649 
 
 Bennett v. Hunter, 9 Wallace (TL S.) 326. 
 Brown v. Hays, 66 Pa. St. 229. 
 Brown v. Veazie, 25 Maine 359. 
 Covington v. Kentucky, 173 United States 231. 
 Cruger v. Dougherty, 43 New York 107. 
 Donald v. McKinnon, 17 Florida 746. 
 King v. Mullins, 171 United States 404. 
 Smith v. Messer, 17 New Hampshire 420. 
 Williams v. Payton's Lessee, 4 Wheaton 77. 
 Woodside v. Wilson, 32 Pa. St. 52. 
 
 VIII. PROHIBITION. 649 
 
 People v. Board, 59 New York 92. 
 Weston v. Charleston, 2 Peters 449.
 
 TABLE OF CASES REPORTED 
 
 [REFERENCES ARE TO PAGES.] 
 
 Adams Express Co. v. Ohio State Auditor, 165 United States, 194; 
 
 17 S. Ct. Rep. 305 394 
 
 Albany Brewing Company v. Meriden, 48 Connecticut 243 489 
 
 Baldwin v. City Council, 53 Alabama 437 33 
 
 Bank of Commerce v. New York City, 2 Black 620 66 
 
 Bell v. Pierce, 51 New York 12 356 
 
 Belo v. Commissioners, 82 North Carolina 415 410 
 
 Bennett v. Hunter, 9 Wallace (U. S.) 326 516 
 
 Boreland v. Boston, 132 Massachusetts 89 351 
 
 Bosworth v. Danzien, 25 California 297 444 
 
 Brackett v. Vining, 49 Maine 356 481 
 
 Brown v. Hays, 66 Pa. St. 229 440 
 
 Brown v. Houston, 114 United States 622 113 
 
 Brown v. Maryland, 12 Wheaton 419 133 
 
 Brown v. Veazie, 25 Maine 359 507 
 
 Burlington v. Putnam Insurance Company, 31 Iowa 102 . 543 
 
 Cager, Matter of, 111 New York 343 ; 18 N. E. Rep. 866 343 
 
 California v. McCreery, 34 California 432 299 
 
 Carpenter v. Snelling, 97 Massachusetts 452 60 
 
 Gary v. Curtis, 3 Howard (U. S.) 236 604 
 
 Christ Church v. County of Philadelphia, 24 Howard (U. S.) 300.... 43 
 
 City Council of Montgomery, Ex parte, 64 Alabama 463 30 
 
 City of Camden v. Allen, 2 Butcher (N. J.) 398 5 
 
 City of Newton v. Atchinson, 31 Kansas, 151; 1 Pac. Rep. 288 549 
 
 City of Tampa v. Kaunitz, 39 Florida 683 337 
 
 Collector v. Beggs, 17 Wallace (U. S.) 182 539 
 
 Collector v. Day, 11 Wallace (U. S.) 113 61 
 
 Commonwealth v. Byrne, 20 Grattan (Va.) 165 499 
 
 Commonwealth v. Freedley's Executors, 21 Pa. St. 33 349 
 
 Commonwealth v. N. Y., L. E. & W. R. R. Co., 129 Pa. St 463; 
 
 18 At. Rep. 412 371 
 
 Cone v. Wilson, 14 Indiana 465 482 
 
 Cook v. Pennsylvania, 97 United States 566 145 
 
 Cornwall v. Todd, 38 Connecticut 443 307 
 
 County Commissioners v. Union Mining Co., 61 Maryland 547 436 
 
 County of San Mateo v. So. Pac. R. R. Co., 13 Fed. Rep. 722 179 
 
 County of Santa Clara v. So. Pac. R. R. Co., 18 Fed. Rep. 385 189 
 
 Covington v. Kentucky, 173 United States 231; 19 S. Ct. Rep. 383.. 51 
 
 XV
 
 *V1 TABLE OF CASES REPORTED. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Cruger r. Dougherty, 43 New York 107 429 
 
 Cypress Pond &c. Co. v. Hooper, 2 Metcalfe (K'y) 350 27 
 
 Daniels v. Nelson, 41 Vermont 161 478 
 
 De Lima v. Bidwell, 182 United States 1; 21 S. Ct. Rep. 743 611 
 
 Donald v. McKinmm, 17 Florida 746 477 
 
 Dooley v. United States, 182 United States 222; 21 S. Ct. Rep. 762 619 
 
 Dooley v. United States, 183 United States 151; 22 S. Ct Rep. 62 228 
 
 Dows v. Chicago, 11 Wallace (U. S.) 108 642 
 
 Drexel v. Commonwealth, 46 Pa. St. 31 318 
 
 Dyer v. Osborne, 11 Rhode Island 321 413 
 
 Fairbank v. United States, 181 United States 283; 21 S. Ct. Rep. 648. 173 
 
 Felsenthal v. Johnson, 104 Illinois 21 339 
 
 Freight Tax, Case of the State, 15 Wallace (U. S.) 232 98 
 
 French v. Barber Asphalt Co., 181 United States 324; 21 S. Ct. Rep. 
 
 625 577 
 
 Gault's Appeal, 33 Pa. St 94 514 
 
 Gibson v. Bailey, 9 New Hampshire 168 331 
 
 Oilman v. Sheboygan, 2 Black 510 284 
 
 Gloucester Ferry Co. v. Pennsylvania, 114 United States 196; 5 S. 
 
 Ct. Rep. 826 401 
 
 Gordon v. Cornes, 47 New York 608 251 
 
 Hammett v. Philadelphia, 65 Pa. St. 146 569 
 
 Handley, Estate of, 181 Pa. St. 339 ; 37 At. Rep. 587 273 
 
 Henderson's Distilled Spirits, 14 Wallace (U. S.) 44 484 
 
 Hersey v. Board, 37 Wisconsin 75 447 
 
 Holt's Appeal, 5 Rhode Island 603 36 
 
 Home Insurance Company v. New York, 134 United States 594; 
 
 10 S. Ct. Rep. 593 69 
 
 Home of the Friendless v. Rouse, 8 Wallace (U. S.) 430 48 
 
 Horn Silver Mining Co. v. New York, 143 United States 305; 12 S. 
 
 Ct. Rep. 403 376 
 
 King v. Mullins, 171 United States 404; 18 S. Ct. Rep. 925 492 
 
 Kirtland v. Hotchkiss, 100 United States 491 268 
 
 Knowlton v. Moore, 178 United States 41; 20 S. Ct. Rep. 747. 214 
 
 Leloup v. Port of Mobile, 127 United States 640; 8 S. Ct. Rep. 1380. . 104 
 
 Litchfleld v. Vernon, 41 New York 123 566 
 
 Loan Association v. Topeka, 20 Wallace (U. S.) 655 231 
 
 Lowell v. City of Boston, 111 Massachusetts 454 239 
 
 Magoun v. Illinois Trust &c. Bank, 170 United States 283; 18 S. Ct. 
 
 Rep. 594 196 
 
 Manchester Mills v. Manchester, 57 New Hampshire 309 630 
 
 Maryland v. Dalrymple, 70 Maryland 294 278 
 
 Mayor &c., Matter of, 11 Johnson 77 302 
 
 Mayor v. Second Avenue R. R. Co., 32 New York 261 546 
 
 McChesney v. Chicago, 171 Illinois 253; 49 N. E. Rep. 548 594 
 
 McChesney v. Hyde Park, 151 Illinois 634; 37 N. E. Rep. 858 592 
 
 McCready v. Sexton, 29 Iowa 356 320 
 
 M'Culloch v. Maryland, 4 Wheaton 316 56 
 
 -McMillen v. Anderson, 95 United States 37 474
 
 TABLE OF CASES REPORTED. XV11 
 
 [REFERENCES ARE TO PAGES.] 
 
 McPherson, Matter of, 104 New York 306; 10 N. E. Rep. 685 334 
 
 Meredith v. United States, 13 Peters 486 7 
 
 Merritt v. Kewanee, 175 Illinois 537; 51 N. E. Rep. 867 595 
 
 Metropolitan Board y. Barrie, 34 New York 657 562 
 
 Middletown Ferry Co. v. Middletown, 40 Connecticut 65 359 
 
 Miller v. Pennsylvania, 111 Pa. St. 321; 2 At. Rep. 492 272 
 
 Mygatt v. Washburn, 15 New York 316 345 
 
 New Jersey v. Wilson, 7 Cranch (U. S.) 164 45 
 
 New Orleans v. Stempel, 175 United States 309; 20 S. Ct Rep. 110. . 265 
 
 Newton v. Atchinson, 31 Kansas 151 ; 1 Pac. Rep. 288 549 
 
 Orr v. Oilman, 183 United States 278; 22 S. Ct. Rep. 213 184 
 
 Osborne v. Florida, 164 United States 650; 17 S. Ct. Rep. 214 110 
 
 Ould v. Richmond, 23 Grattan (Va.) 464 555 
 
 Palmer v. McMahon, 133 United States 660; 10 S. Ct Rep. 234 497 
 
 Parish v. Golden, 35 New York 462 328 
 
 Parker v. Overman, 18 Howard (U. S.) 137 611 
 
 Partridge v. Lucas, 99 California 519; 33 Pac. Rep. 1082 600 
 
 Passavant v. United States, 148 United States 214; 13 S. Ct. Rep. 572. 634 
 
 Peirce v. Boston, 3 Metcalfe (Mass.) 520 1 
 
 Pell, Matter of, 171 New York 48 ; 63 N. E. Rep. 789 289 
 
 Pelton v. National Bank, 101 United States 143 422 
 
 Pennsylvania v. Ravenel, 21 Howard (U. S ) 104 354 
 
 People v. Barker, 146 New York 304; 40 N. E. Rep. 966 460 
 
 People v. Board, 59 New York, 92 564 
 
 People v. Campbell, 93 New York 196 300 
 
 People v. Carter, 109 New York 576; 17 N. E. Rep. 222 $2$ 
 
 People v. Coleman, 126 New York 433; 27 N. E. Rep. 818 452 
 
 People v. Coleman, 4 California 46 10 
 
 People v. Commissioners, 23 New York 224 J79 
 
 People v. Compagnie G6n6rale Ac.. 107 United States 59; 2 S. Ct. 
 
 Rep. 87 1C2 
 
 People v. Equitable Trust Company, 96 New York 387 368 
 
 People v. Forrest, 96 New York 544 347 
 
 People v. Horn Silver Mining Co., 105 New York 76; 11 N. E. Rep. 
 
 155 375 
 
 People v. Mayor, 4 New York 419 13 
 
 People v. Sacramento Co., 59 California 321 471 
 
 People v. Salomon, 46 Illinois 333 455 
 
 People v. Smith, 88 New York 576 337 
 
 People v. Supervisors, 51 New York 401 310 
 
 People v. Trustees, 48 New York 391 . . 622 
 
 People v. Wemple, 117 New York 136; 22 N. E. Rep. 1046 364 
 
 Philadelphia v. Pennsylvania Hospital, 143 Pa. St 367; 22 At. Rep. 
 
 144 599 
 
 Philadelphia &c. Steamship Co. v. Pennsylvania, 122 United States 
 
 326; 7 S. Ct. Rep. 1118 12 
 
 Pickard v. Pullman &c., Co., 117 United States 34; 6 Sup. Ct. Rep. 635. 108 
 
 Plummer v. Coler, 178 United States 115; 20 S. Ct. Rep. 829 75 
 
 Pollock v. Farmers &c. Co., 157 United States 429; 15 S. Ct. Rep. 673. 83
 
 xviii TABLE OF CASES REPORTED. 
 
 [REFERENCES ARE TO PAGES.] 
 
 Pollock v. Farmers Ac. Co., 158 United States 601; 15 S. Ct Rep. 912. 208 
 
 Portland Bank v. Apthorp, 12 Massachusetts 252 534 
 
 Price v. Mott, 52 Pa. St. 315 
 
 Pullman's Palace Car Co. v. Pennsylvania, 141 United States 18; 11 
 
 S. Ct. Rep. 876 389 
 
 Railway Gross Receipts, State Tax on, 15 Wallace (U. S.) 284 123 
 
 Ratterman v. Western Union Tel. Co., 127 United States 411; 8 S. 
 
 Ct. Rep. 1127 130 
 
 Rees v. Watertown, 19 Wallace (U. S.) 107 23 
 
 Robbins v. Shelby County Taxing District, 120 United States 489; 
 
 7 S. Ct. Rep. 592 93 
 
 Sackett Street, Matter of, 74 New York 95 326 
 
 Sage v. Fifield, 68 Wisconsin 546; 32 N. W. Rep. 629 644 
 
 Savings &c. Society v. Multnomah Co., 169 United States 421; 18 
 
 S. Ct. Rep. 392 259 
 
 Shaw v. Peckett, 26 Vermont 482 3 
 
 Sheldon v. Van Buskirk, 2 New York 473 480 
 
 Slater v. Maxwell, 6 Wallace (U. S.) 268 509 
 
 Smith v. Messer, 17 New Hampshire 420 304 
 
 Snell v. Fort Dodge, 45 Iowa 564 305 
 
 Snyder v. Marks, 109 United States 189; 3 S. Ct. Rep. 157 645 
 
 Springer v. United States, 102 United States 586 202 
 
 State v. Branin, 3 Zabriskie (N. J.) 484 417 
 
 State v. City of Newark, 3 Dutcher (N. J. L.) 186 573 
 
 State v. City of New Orleans, 37 La. Ann. 16 40 
 
 State v. Dalrymple, 70 Maryland 294 ; 17 At. Rep. 82 278 
 
 State v. Platt, 24 N. J. L. 108 450 
 
 State v. Schlier, 3 Heiskell (Tenn.) 281 537 
 
 State v. Sickles, 4 Zabriskie (N. J.) 125 34 
 
 State v. Township Committee, 7 Vroom (N. J.) 66 282 
 
 State v. Williston, 20 Wisconsin 240 427 
 
 State Freight Tax, 15 Wallace (U. S.) 232 98 
 
 State Tax on Railway Gross Receipts, 15 Wallace (U. S.) 284 123 
 
 State Tonnage Tax Cases, 12 Wallace (U. S.) 204 165 
 
 State of Nevada v. Central Pacific R. R. Co., 7 Nevada 99 640 
 
 St. Louis v. The Ferry Company, 11 Wallace (U. S.) 423 257 
 
 Supervisors v. C., B. & Q. R. R. Co., 44 Illinois 229 293 
 
 Swift, Matter of, 137 New York 77; 32 N. E. Rep. 1096 275 
 
 Tappan v. Merchants' National Bank, 19 Wallace (U. S.) 490 .... 418 
 
 Thomas v. Leland, 24 Wendell (N. Y.) 65 255 
 
 Tonnage Tax Cases, State, 12 Wallace (U. S.) 204 165 
 
 Torrey v. Inhabitants, 21 Pickering 64 314 
 
 Turner v. Smith, 14 Wallace (U. S.) 553 522 
 
 Tyler v. Inhabitants, 6 Metcalf (Mass.) 470 435 
 
 United States v. B. & O. Railroad Company, 17 Wallace (U. S.) 322. . 89 
 United States v. Realty Company, 163 United States 427; 16 S. Ct. 
 
 Rep. 1120 243 
 
 Van Brocklin v. Tennessee, 117 United States 151; 6 S. Ct. Rep. 670. 85 
 
 Van Voorhis v. Budd, 39 Barbour (N. Y.) 479 433
 
 TABLE OF CASES REPORTED. XIX 
 
 [REFERENCES ARE TO PAGES.] 
 
 Veazie Bank v. Fenno, 8 Wallace (D. S.) 533 20 
 
 Waring v. Mayor, 8 Wallace (U. S.) 110 150 
 
 Washington Avenue, 69 Pa. St. 352 581 
 
 Western Transportation Co. v. Scheu, 19 New York 408 361 
 
 Western Union Telegraph Co. v. Borough of New Hope, 187 United 
 
 States 419; 23 S. Ct. Rep. 204 , 120 
 
 Weston v. Charleston, 2 Peters 449 64 
 
 Whiteford Township v. Probate Judge, 53 Michigan 130; 18 N. E. 
 
 Rep. 593 597 
 
 Williams v. Payton's Lessee, 4 Wheaton 77 526 
 
 Williamson v. New Jersey, 130 United States 189; 9 S. Ct. Rep. 453. . 38 
 
 Woodruff v. Parham, 8 Wallace (U. S.) 123 153 
 
 Woodside v. Wilson, 32 Pa. St. 52 442 
 
 Wright v. Blakeslee, 101 United States 175 616 
 
 Wright v. Chicago, 20 Illinois 252 587 
 
 Youngblood v. Sexton, 32 Michigan 406 529
 
 CASES ON TAXATION 
 
 CHAPTER I. 
 THE NATURE OF TAXES. 
 
 I. TAXES NOT DEBTS. 
 PEIECE V, CITY OF BOSTON. 
 
 Supreme Judicial Court of Massachusetts. March, 181$. 
 SMetcalf520. 
 
 HUBBABD, J. This is an action of assumpsit, brought to recover 
 a sum of money due to the plaintiff for his services as a teacher in 
 one of the public schools in the city. 
 
 The right of the plaintiff to a judgment in his favor is resisted, 
 on the ground that his demand, before the commencement of the 
 suit, was assigned to Joel Peirce, and by him to George Odin, for 
 whose benefit the action is brought ; and as against George Odin, and 
 in like manner as if he were the plaintiff in the suit, the defendants 
 claim to set off certain taxes assessed upon the said. George Odin and 
 Reuben Richards, as assignees of John Odin, by the proper authori 
 ties of the city; which taxes were unpaid at the time when thr 
 services were rendered by the plaintiff, and still remain unpaid. 
 
 The question submitted to the court for its decision is, whether 
 such set-off can legally be made. It is contended by the defendants, 
 that these are mutual demands between the parties, and that, by 
 force of the Rev. Sts. c. 96, the one demand may be set off against 
 the other, and judgment be given for the balance. Two objections 
 are made to such an allowance; the one, that the demand of the 
 defendants is not of the nature contemplated by the statute; and 
 the other, the want of mutuality in the parties. 
 
 The right to set off mutual debts has long been recognized;, but 
 while the principle has been acknowledged, the application of it has 
 been restrained within circumscribed limits. The St. of 1784, c. 28, 
 12, provided that in actions brought to recover the amount of an 
 account, or for services rendered, the defendant might file any 
 account he had against the plaintiff, by way of set-off to the plain- 
 1 1
 
 2 THE NATURE OF TAXES. 
 
 tiff's demand. By St. 1793, c. 75, 4, the remedy was extended, so 
 that in actions brought for any debt upon simple contract or promise 
 in writing not under seal, defendants might file in set-off any de- 
 mands against plaintiffs for goods delivered, moneys paid, or services 
 done. By the Rev. Sts. c. 96, this right is greatly extended, and not 
 only accounts and claims for services, or for goods delivered, may 
 now be set off, but also demands founded on judgments and on con- 
 tracts express or implied, and with or without seal. But notwith- 
 standing this enlargement, the counsel for the plaintiff contends that 
 taxes, assessed upon a citizen, are neither demands founded upon a 
 judgment, nor contracts between parties. To which it has been 
 ingeniously replied by the learned counsel for the city, that the 
 assessment of taxes is a judgment, and the warrant to collect them 
 an execution founded upon such judgment; and if not technically a 
 judgment at the common law, yet that it is substantially a judg- 
 ment, within the intent and meaning of the statute. But we are of 
 opinion, that this position cannot be successfully maintained; for 
 though the right of set-off is enlarged, the language of the statute 
 is still precise and definite. "No demand shall be set off, unless it 
 is founded upon a judgment or upon a contract; but the contract 
 may be either express or implied, and with or without a seal." Rev. 
 Sts. c. 96, 2. 
 
 Judgments are the judicial sentences of courts, rendered in causes 
 within their jurisdiction, and coming legally before them, and are 
 conclusive in all cases where no appeal or writ of error lies, and can- 
 not be inquired into or controverted. 
 
 Taxes are those proportional and reasonable assessments and duties 
 which may, by virtue of the constitution, be imposed from time to 
 time, by the General Court, upon the inhabitants of the Common- 
 wealth, for the necessary defense and support of the government, 
 and for the protection and preservation of the rights, and to promote 
 the interests, of the people. They do not partake of the nature of 
 judgments. The imposition and collection of them are ministerial 
 acts, and are the proper subjects of inquiry, as to the manner of 
 their assessment and the mode of their enforcement, in the judicial 
 forum; and for the collection of them no right of action is given 
 (with a few special exceptions, growing out of the death of parties, 
 or their removal out of the collector's precinct, or on the marriage of 
 females), nor can they be turned into judgments. Nor are taxes 
 contracts between party and party, either express or implied; but 
 they are the positive acts of the government through its various 
 agents, binding upon the inhabitants, and to the making or enforcing
 
 SHAW V. PECKETT ET AL. 3 
 
 of which their personal consent, individually, is not required. With 
 this view of the statute, we are of the opinion, that the defendants' 
 claim is not one which can be set off under any of its provi- 
 sions 
 
 Conformably to the agreement of the parties, an assessor will be 
 appointed to ascertain the amount due from the city, unless the 
 parties agree upon the same. 
 
 C&* 3 / T . 
 
 SHAW V. PECKETT ET AL. 
 
 Supreme Court of Vermont. March, 1854- 26 Vermont 482. 
 
 Trespass for false imprisonment. The defendants filed a special 
 plea, justifying under a tax-bill and warrant. The plaintiff replied 
 and set forth in his replication, that at the time he was arrested in 
 August, 1851, he handed to the defendant, Gerry, the sum of $13.25,; 
 which was the amount of the tax and costs charged by said defend- 
 ant, and asked to be discharged; but, that said defendant refused to 
 discharge the plaintiff from arrest, and for a long time kept the 
 plaintiff under arrest and imprisoned; the said defendant refusing 
 to set the plaintiff at liberty until he paid the sum of $3.44, claimed 
 by said defendant to be due as interest on the said taxes. The 
 defendants rejoined and set forth, in substance, that the defendant, 
 Gerry, having the tax-bills and warrants, on the first day of June, 
 18-46, demanded the said several sums in said lax-bills due against 
 said Shaw, of him, the said Shaw; that he refused and ever since 
 has refused and neglected to pay, until the 7th day of August, 1851, 
 when said Shaw, having come within the state of Vermont, and hav- 
 ing no goods or chattels whereon to make distress, he took the body 
 of the" said Shaw, calling to his aid the said Peckett, and held said 
 Shaw about ten hours, until he paid said taxes, costs and said sum 
 of $3.44, interest, accruing from the time of said demand to the 
 time of said payment, all of which was lawful, &c. 
 
 To the rejoinder of the defendants, the plaintiff demurred. 
 
 The County Court; January Term, 1854 Collamer, J., pre- 
 siding rendered judgment that the rejoinder is sufficient, and that 
 defendants recover their costs. 
 
 Exceptions by plaintiff. 
 
 The opinion of the court was delivered by 
 
 ISHAM, J. The judgment of the county court in this case must 
 be reversed. The arrest of which the plaintiff complain*, is ad-
 
 4 THE NATURE OF TAXES. 
 
 mitted by defendant, Gerry, in this plea, but he justifies the same 
 as collector of taxes. From the facts which are admitted by the 
 demurrer, it appears that the plaintiff was assessed, in the sum of 
 $11.96, as specified in two several rate-bills and warrants, which 
 were issued and placed in the defendant's hands, as collector; and 
 that for the non-payment of these two taxes the arrest was made. 
 
 The legality of the assessments, rate-bills, and warrants, are not 
 disputed, but it is insisted that the arrest was illegal, as the plain- 
 tiff handed to defendant, Gerry, the sum of $13.25, being the 
 amount of the taxes and costs, and requested to be discharged, which 
 said defendant refused to do, until the further sum of $3.44 was 
 paid as interest on the taxes. The defendant states as a ground for 
 the recovery of the interest, that he made a demand for the payment 
 of the taxes, on the first day of June, 1846, and that the plaintiff 
 neglected and refused to pay them, until the time of the arrest in 
 August, 1851. The demurrer admits that the arrest was made for 
 the purpose of enforcing the payment of interest merely. The ques- 
 tion arises, whether for that purpose, the arrest and commitment 
 was legal. 
 
 We are satisfied that the collector had no right to demand and 
 enforce the payment of that interest. The taxes were assessed in 
 1846, and have remained in the hands of the collector until their 
 payment in 1851. The plaintiff was absent from the state during 
 all the period from the time of the assessment, to the time of the 
 arrest, and had no property in this state, known to the collector, 
 which could be distrained. There is no provision of the statute 
 authorizing him to collect interest on taxes, of the persons against 
 whom they are assessed, and we perceive no provision which sub- 
 jects the collector to the payment of interest under such circum- 
 stances. The assessment of taxes does not create a debt that can be 
 enforced by suit, or upon which a promise to pay interest can be 
 implied. It is a proceeding purely in invitum. The existence of a 
 contract, either express or implied, is the ground upon which inter- 
 est is generally allowed 
 
 The justification is deemed insufficient, and the judgment of the 
 county court must be reversed and the case remanded.
 
 CITY OF CAMDEN V. ALLEN BT AL. 5 
 
 II. SUITS FOR COLLECTION. 
 CITY OF CAMDEN V. HENRY ALLEN ET AL. 
 
 Supreme Court of New Jersey. November, 1857. 
 2 Dutcher 398. 
 
 THE CHIEF JUSTICE. An action of debt was brought by the 
 plaintiff, in the Camden circuit, for the recovery of taxes assessed 
 by authority of the city of Camden, upon real estate in that city, 
 in the year 1853. Upon a general demurrer to the declaration, 
 the caae is certified to this court for its advisory opinion. 
 
 The only question presented by counsel, upon the case certified 
 for the opinion of this court, is whether an action of debt will lie 
 to recover taxes under the laws of this state. It is not denied 
 that the city had power to levy the tax in question, and that the 
 assessment was regularly made. The payment of the tax may, it 
 is conceded, be enforced in the mpde prescribed by the statute 
 but may resort be had to an action at law to enforce payment? 
 
 A tax, in its essential characteristics, is not a debt, nor in the 
 nature of a debt. A tax is an impost levied by authority of 
 government, upon its citizens or subjects, for the support of the 
 state. It is not founded on contract or agreement. It operates in 
 invitum. Peirce v. Tie City of Boston, 3 Mete. 520. A debt is 
 a sum of money due by certain and express agreement. It origi- 
 nates in, and is founded upon contract express or implied. 
 
 A debt universally bears interest from the time it is due. A 
 tax never carries interest. No instance, it is believed, can be 
 found since the formation of the government where a claim for 
 interest on taxes has been made or enforced. 
 
 In Shaw v. Peckett, 26 Verm. 482, it was expressly decided 
 that interest could not be collected upon a tax, and that it could 
 not be enforced by suit. 
 
 Debt is the subject matter of set-off, and is liable to set-off; a 
 tax is neither. To hold that a tax is liable to set-off would be 
 utterly subversive of the power of government and destructive of 
 the very end of taxation. If the national debt of Great Britain 
 were distributed among one-half or three-fourths of its taxpayers, 
 could they set off such debt, if past maturity, against the annual 
 tax assessed against them for the support of government? Or can 
 the multitude of creditors of our local municipal corporations set-
 
 6 THE XATUEE OF TAXES. 
 
 off the debts due from the town or city against their taxes? The 
 question relates not to the technical form of making the set-off; 
 but, as a matter of principle and sound policy, could the claim be 
 tolerated ? How is government to be maintained upon such theory ? 
 It is not improbable that at this hour many of our municipal cor- 
 porations are indebted to their own citizens, in amounts far ex- 
 ceeding the annual tax which, by their charters, they are authorized 
 to levy. If a principle so clear requires an authority in its sup- 
 port, it will be found in Peirce v. The City of Boston, 3 Mete. 
 520. 
 
 It was also held, in the case just cited, that taxes do not partake 
 of the nature of judgments; that no right of action is given for 
 them, except in certain specified cases, and that they cannot be 
 turned into judgments. 
 
 There is in fact no necessity, nor reason, nor ground of policy, 
 for converting a tax into a debt, and bringing an action for it? 
 recovery. The government and municipal corporations exercising 
 the functions of government have a higher and better remedy. It 
 is a claim created by government, through the action of its own 
 executive officers, having all the efficacy of a judgment, creating 
 a lien upon property, admitting of no appeal, except to its own 
 specially constituted agents, nor under the control of judicial 
 tribunals, subject to none of the delays incident to proceedings in 
 courts of law, and capable of being enforced by process more sum- 
 mary than legal execution. On the other hand, to permit municipal 
 corporations, or their subordinate officers, at pleasure to forego 
 the plain and simple method prescribed by statute for the recovery 
 of taxes, and to subject the taxpayer to the vexation and costs of 
 legal proceedings, would be adding a wanton and intolerable griev- 
 ance to a burthen already sufficently onerous. 
 
 If, indeed, a tax should be imposed, and no method be provided 
 by law for its recovery, a resort to legal proceedings would then 
 be a matter of necessity. By the fundamental principle of the law, 
 there must be a redress for every wrong, a method of recovery for 
 every due. In the cases cited upon the argument, where an action 
 of debt was maintained, in Ohio for the recovery of tax, the only 
 points discussed or decided relate to the legality of the tax itself. 
 No question appears to have been raised as to the form of recovery. 
 Ohio v. Hibbard, 3 Ohio R. 63; Ohio v. Gazlay, 5 Ohio R. 14. It 
 may be presumed that the statute of that state either prescribed no 
 other mode of recovery, or expressly authorized the bringing of the 
 action. In my opinion, the declaration contains no cause of action.
 
 MEREDITH ET AL. V. UNITED STATES. 7 
 
 The circuit court should be advised that the defendant is entitled 
 to judgment upon the demurrer. 
 
 MEREDITH ET AL. V. THE UNITED STATES. 
 
 Supreme Court of the United States. January, 1839. 
 13 Peters 486. 
 
 Mr. Justice STORY delivered the opinion of the Court. 
 
 This is a writ of error to the Circuit Court for the District of 
 Maryland. The original action was assumpsit, brought by the 
 United States against the plaintiffs in error, who were the original 
 defendants, to recover from them, as assignees under a general as- 
 signment of the property of the firm of Smith and Buchanan, the 
 amount of certain duties alleged to be due from the said firm upon 
 certain importations in the brig Unicorn and the ship Brazilian, 
 out of the funds in the hands of the assignees, upon the ground of 
 an asserted right of priority of the United States to payment out 
 of the same funds. 
 
 At the trial, upon the general issue, the material facts appeared 
 as follows. In the years 1818 and 1819 Smith and Buchanan, and 
 Hollins and M'Blair, two separate commercial firms in Baltimore, 
 imported, on their own account as owners, a quantity of goods 
 from Calcutta in the brig Unicorn and ship Brazilian above men- 
 tioned, on which the present duties were claimed. Smith and 
 Buchanan were the importers and owners of two-thirds of the 
 cargo of the ship, and five-ninths of that of the brig; and that 
 proportion went to their possession and use. The remainder of 
 both cargoes belonged to Hollins and M'Blair. The entries of both 
 cargoes were made at the customhouse at Baltimore by John S. 
 Hollins, one of the firm of Hollins and M'Blair, as imported in 
 the vessels, respectively, by Hollins and M'Blair and Smith and 
 Buchanan; and Hollins gave bonds for the duties in the common 
 form in his own name; and James A. Buchanan of the firm of 
 Smith and Buchanan, and Lemuel Taylor, who is admitted to be 
 a mere surety, also executed the same bonds. The condition of 
 the bonds was for the payment of the duties on the goods 
 "entered by the above bounden John S. Hollins, for Smith and 
 Buchanan, and Hollins and M'Blair, as imported" in the ship 
 and brig respectively. Upon these bonds the United States after-
 
 8 THE NATUHE OF TAXES. 
 
 ward instituted actions against each of the obligors, and recovered 
 judgments in the Circuit Court for the District of Maryland. 
 These judgments have been revived and are now in full force and 
 unreversed. Smith and Buchanan became insolvent; and after the 
 rendition of the judgments, Taylor also became insolvent under 
 the insolvent laws of Maryland. 
 
 The first question is, whether Smith and Buchanan were ever 
 personally indebted for these duties; or, in other words, whether 
 the importers of goods do, in virtue of the importation thereof, 
 become personally indebted to the United States for the duties due 
 thereon; or the remedy of the United States is exclusively confined 
 to the lien on the goods, and the security of the bond given for 
 the duties. It appears to us clear upon principle, as well as upon 
 the obvious import of the provisions of the various acts of Congress 
 on this subject, that the duties due upon all goods imported con- 
 stitute a personal debt due to the United States from the importer 
 (and the consignee for this purpose is treated as the owner and 
 importer,) independently of any lien on the goods, and any bond 
 given for the duties. The language of the duty act of the 27th 
 of April, 1816, ch. 107, under which the present importations were 
 made, declares that "there shall be levied, collected and paid," 
 the several duties prescribed by the act on goods imported into 
 the United States. And this is a common formulary in other act-* 
 laying duties. Now, in the exposition of statutes laying duties, it 
 has been a common rule of interpretation derived from the prin- 
 ciples of the common law, that where the duty is charged on the 
 goods, the meaning is that it is a personal charge on the owner by 
 
 reason of the goods. So it was held in Attorney General v. , 
 
 2 Anst. R. 558, where a duty was laid on wash in a still; and it 
 was said by the Court that where duties are charged on anv articles 
 in a revenue act, the word "charged" means that the owner shall 
 be debited with the sum; and that this rule prevailed even when 
 the article was actually lost or destroyed before it became available 
 to the owner. Nor is there anything new in this doctrine; for 
 it has long been held that in all such cases an action of debt lies 
 in favor of the government against the importer, for the duties, 
 whenever by accident, mistake, or fraud, no duties, or short duties 
 have been paid. 
 
 Upon the whole we are of opinion that the judgment of the 
 Circuit Court ought to be affirmed
 
 MEREDITH ET AL. V. UNITED STATES 9 
 
 Suits for the collection of taxes are very frequently found in the books. 
 They are allowed either as result of the application of the principle applied 
 in the principal case or because specially permitted by statute. Cases in this 
 collection where such suits have been allowed are: Boreland v. Boston, 132 
 Mass., 89 ; City of Burlington v. Putnam Ins. Co., 31 Iowa, 102 ; County of 
 Santa Clara v. Southern Pac. R. R. Co., 18 Fed. Rep., 385 ; Hammett v. Phila- 
 delphia, 65 Pa. St., 146; Home Ins. Co. v. New York, 134 N. S., 594; Part- 
 ridge v. Lucas. 99 Cal., 519; Pennsylvania v. Rancuel, 21 Howard (U. S.), 
 104; People v. Equitable Trust Co., 96 N. Y., 387; People v. Horn Silver 
 Mining Co., 105 N. Y., 76; Philadelphia v. Pennsylvania Hospital, 143 Pa. 
 St., 367; State v. Central Pacific R. R. Co., 7 Nevada, 99; United States v. 
 B. & O. R. R. Co., 17 Wallace, 322 ; W. U. Tel. Co. v. Borough of New Hope, 
 187 U. S., 419; Woodruff v. Parham, 8 Wallace, 123.
 
 CHAPTER II. 
 THE NATURE OF THE POWER TO TAX. 
 
 I. THE TAXING POWER A LEGISLATIVE POWER. 
 
 PEOPLE V. COLEMAN ET AL. 
 PEOPLE V. HUSSEY ET AL. 
 
 Supreme .Court of California. January, 1854. 
 4 California 46. 
 
 The complaints in these several cases, against the several de- 
 fendants therein, and doing business in the city of San Francisco,, 
 by designation of the Attorney General, in order to secure an im- 
 partial trial, were filed in Contra Costa County, in the ordinary 
 form, to recover the penalties imposed by Article VI. of the 
 Revenue Act of May 18, 1853, on auctioneers, for selling real or 
 personal property without a license 
 
 The defendants demurred to the several complaints, and assigned 
 for error, that the whole revenue act of 1853, and particularly 
 articles VI. and VII., were in direct conflict with the Constitutions 
 of the State of California and of the United States, and, there- 
 fore, null and void. A decision, pro forma, was entered by the 
 court, sustaining the demurrer from which decision appears were 
 prosecuted in this court. 
 
 Mr. CH. J. MURRAY delivered the opinion of the court. Mr. J. 
 HEYDENFELDT concurred. 
 
 This appeal is prosecuted from a pro forma decision of the Dis- 
 trict Court of Contra Costa County. 
 
 The suit was commenced in the nature of a prosecution, to 
 recover the penalty for a violation of the revenue act of 1853. 
 
 The defendants demur on the ground that the act in question is 
 repugnant to the Constitution of the United States, and the Con- 
 stitution of the State of California. 
 
 To enable us to arrive at a correct determination of this case, 
 it may well to lay down, in limine, a few principles, which, we 
 believe, by lon<r acceptation, have become universally recognized as 
 truisms, and which have not, within our knowledge, been doubted, 
 except, perhaps, by the learned counsel for the respondents. 
 
 10
 
 PEOPLE V. COLEMAX ET AL. 11 
 
 1st. That each State is supreme within its own sphere, as an 
 independent sovereignty. 
 
 3d. That the Constitution of this State is not to be considered 
 as a grant of power, but rather as a restriction upon the powers 
 of the Legislature; and that it is competent for the Legislature to 
 exercise all powers not forbidden bv the Constitution of the State, 
 or delegated to the General Government, or prohibited by the Con- 
 stitution of the United States. 
 
 From this it follows that the power of the Legislature to tax 
 trades, professions, and occupations, is a matter completely within 
 the control, and, unless inhibited by the Constitution, eminently 
 belonging to, and resting in, the sound discretion of the Legisla- 
 ture. This principle has been repeatedly maintained by the Courts 
 of almost every State in the Union, and reiterated by the decisions 
 of the Supreme Court of the United States. 
 
 It becomes necessary, then to inquire if this power has been 
 withdrawn by our Constitution, from the Legislature. 
 
 This position seems to have been abandoned, upon the argument 
 of the case. In fact, so strong are the authorities and obvious the 
 rules of construction, that it would be almost insulting the intel- 
 ligence of any respectable tribunal to contend for it. 
 
 But it is contended that, conceding this power to tax occupations 
 and professions, it has been limited by the 13th section of the 
 llth article of the Constitution, which provides that "Taxation 
 shall be equal and uniform throughout the state. All property 
 shall be taxed in proportion to its value, to be ascertained as di- 
 rected by law; but Assessors and Collectors of town, county and 
 State taxes shall be elected by the qualified electors of the district, 
 county or town in which the property taxed for State, county or 
 town purposes is situated." 
 
 Do the words, "shall be equal and uniform/' operate as a limita- 
 tion upon the taxing power of the Legislature, and apply to every 
 species of taxation to which Government may resort for the main- 
 tenance of itself, or are they to be taken as applying only to direct 
 taxation upon property, as such, and intended to prevent the Legis- 
 lature from fixing an arbitrary standard as to kind or quality, by 
 providing that it shall be taxed in proportion to its value, to be 
 ascertained as provided by law? 
 
 We are of opinion, that the words "equal and uniform" apply only 
 to a direct tax on property; that the Legislature may select or ex- 
 empt such property as, in its discretion, it may think proper; and
 
 12 NATURE OF POWER TO TAX. 
 
 that these words do not, by any fair rule of interpretation, extend 
 lo taxes on occupation. 
 
 But it is contended thai the Act of May, 1853, violates that pro- 
 vision of our Constitution which provides that "all laws of a gen- 
 eral nature shall be uniform in their operation." 
 
 Much of the reasoning upon the first branch of this case is ap- 
 plicable to this point. By a "uniform operation" it was intended 
 that laws of this character should, as near as possible, affect per- 
 sons and property alike. No legislation has ever yet produced a 
 law taxing the subject for support of Government, which really 
 accomplished this object; from the very nature of the subject it is 
 impossible. The citizen who is protected in $100,000 worth of im- 
 proved property in the City of San Francisco, paying an income 
 from 15 to 30 per cent per annum, pays no more State tax upon 
 the same, than the one who lives in a remote portion of the State, 
 owning the same amount of property in wild and unproductive 
 lands. 
 
 The burdens of Government cannot fall equally upon all; the 
 condition, estate, and occupation of the individual must vary the 
 operation of the law in almost every case. 
 
 The idea of a revenue law which is equal in its operation is en- 
 tirely Utopian, and never can be realized. If the Legislature should 
 pass an act designedly operating unequally; or if a want of uni- 
 formity in its operation was apparent upon its face, it would be 
 the duty of this Court to interpose, and prevent the commission of 
 so grave an injustice. 
 
 But if, in trying to approximate a correct standard, the law 
 may work a hardship in particular supposed cases, it would rather 
 be a consideration for the Legislature, than an argument for the 
 Courts. 
 
 We have carefully examined all the arguments of the respond- 
 ents, and are irresistibly impelled to the conclusion, that the Act 
 of May, 1853, is neither in derogation of the Constitution of this 
 State or the Constitution of the United States. 
 
 This opinion is based, as we believe, on no new principles, and 
 in announcing it, we but reiterate the decisions of the tribunals of 
 other States. 
 
 Without any precedents, however, to control us, looking alone to 
 the powers of a sovereign State, and its absolute control over per- 
 sons and property within its own jurisdiction, as well as to tin- 
 ruinous consequences which would ensue from a different decision,
 
 PEOPLE EX REL. GRIFFIX V. MAYOR. 13 
 
 we are fully of the opinion that the taxing power rests alone in 
 the sound discretion of the Legislature, subject to the restrictions 
 we have already laid down. 
 
 Without it, in cases of emergency or extraordinary necessity. 
 State sovereignty and State power would be a baseless and vision- 
 ary phantom, unable alike to maintain its own domestic independ- 
 ence and dignity, or to defend itself against the assaults of federal 
 encroachment. 
 
 Judgment affirmed. 
 
 A petition for a rehearing was filed by respondents, but refused 
 bv the Court. 
 
 PEOPLE EX REL. GRIFFIX V. MAYOR, ETC., OF BROOK- 
 
 LYX. 
 
 Court of Appeals of New York, April, 1851. 
 4 New York 419. 
 
 Under the charter of the city of Brooklyn, the common council 
 in the year 1848 caused Flushing avenue, one of the streets of that 
 city, to be graded and paved at an expense of $20,390.25, which, 
 according to a provision in the charter, was assessed upon the own- 
 ers or occupants of the lands benefitted by the improvement, in 
 proportion to the amount of such benefit. After the assessment 
 had been confirmed by the common council, Griffin and others, the 
 relators, caused the proceedings to be removed by certiorari into 
 the supreme court, where the proceedings were reversed and the 
 assessment annulled, on the ground that the statute authorizing 
 such assessments was unconstitutional and void. The mayor and 
 common council appealed to this court. 
 
 RUGGLES, J. . . . The grading and paving of the avenue 
 was done under a contract made with the common council; and 
 the city having paid, or being liable for the amount, the assess- 
 ment was made to reimburse the treasury, or to supply it with the 
 means of payment. 
 
 The Supreme Court reversed and annulled the assessment, hold- 
 ing, 
 
 First. That the assessment was not a lawful exercise of the 
 power of taxation. 
 
 Secondly. That money is property; that it cannot be taken 
 from a citizen for public use by the right of eminent domain, 
 without just compensation; and that the enhancement in value of
 
 14 NATURE OF POWER TO TAX. 
 
 the relator's lands, by the grading and paving of Flushing avenue, is 
 not that just compensation within the meaning of the constitution. 
 
 Thirdly. That the money not being taken by the just exercise 
 of either of these powers, is taken, or exacted, without due proces? 
 of law, and therefore in violation of the 6th section of the first 
 article of the constitution, and the assessment is void. The case 
 has been heard and is now to be decided on appeal. 
 
 Private property may be constitutionally taken for public use in 
 two modes; that is to say, by taxation and by right of eminent 
 domain. These are rights which the people collectively retain over 
 the property of individuals, to resume such portions of it as may 
 be necessary for public use. 
 
 The right of taxation and the right of eminent domain rest sub- 
 stantially on the same foundation. Compensation is made when 
 private propertv is taken in either way. Money is property. Tax- 
 ation takes it for public use; and the tax-payer receives, or is sup- 
 posed fo receive his just compensation in the protection which Gov- 
 ernment affords to his life, liberty and property, and in the increase 
 of the value of his possessions by the use to which the Government 
 applies the money raised by the tax. When private property is 
 taken by right of eminent domain, special compensation is made, 
 for the reason hereafter stated. 
 
 For the purpose of determining the constitutional question raised 
 on the argument of this case, the first inquiry will be whether the 
 street assessment in question was a rightful exercise of the power 
 of taxation. 
 
 It is conceded that the grading and paving of Flushing avenue 
 was a public work, the expense of which might rightfully have 
 been raised by general taxation upon all the taxable inhabitants of 
 Brooklyn. The legislature thought proper to shift the burthen 
 of this taxation upon that part, or class, of the taxable inhabitants 
 exclusively, whose lands were benefited by the work, and to im- 
 pose it on them in proportion to the benefit they respectively re- 
 ceived therefrom. 
 
 This change in the apportionment of the burthen was obviously 
 made for the purpose of avoiding the injustice of general taxation 
 for a special local object, the benefit of which extended only to a 
 portion of the inhabitants of the city. It professed to apportion 
 the tax according to the maxim, that 'Tie who receives the advan- 
 tage ought to sustain the burthen," and to exact from each of the 
 parties assessed no more than his just share of the burthen accord-
 
 PEOPLE EX REL. GRIFFIX V. MAYOR. 15 
 
 ing to this equitable rule of apportionment. The assessment, there- 
 fore, was taxation, and not an attempt to exercise the right of emi 
 nent domain. 
 
 If there be any sound objection to the assessment as a tax, it 
 must be an objection which applies to the principle on which the 
 tax is apportioned; because the object for which the money was 
 to be raised is, without dispute, one for which taxation by a differ- 
 ent rule of apportionment would have been lawful. 
 
 It remains to be seen whether anything can be found in the Con- 
 stitution; in legal adjudication; in the practice of the Govern- 
 ment, or in the nature of things, by which taxation upon this prin- 
 ciple of apportionment can be judicially annulled. 
 
 For the purpose of ascertaining what has been deemed, on high 
 authority, the nature and extent of the power of taxation vested in 
 the legislatures of the State Governments, I refer to the opinion 
 of the late Chief Justice Marshall, in the case of Providence Bank 
 v. Billings (4 Peters 514, 561, 563). 
 
 "The power of legislation, and consequently of taxation, oper- 
 ates on all the persons and property belonging to the body politic. 
 This is an original principle which has its foundation in society 
 itself. It is granted by all for the benefit of all. It resides in 
 the government as part of itself, and need not be reserved where 
 property of any description or the right to use it in any manner is 
 granted to individuals or to corporate bodies. However absolute 
 the right of an individual may be, it is still in the nature of that 
 right that it must bear a portion of the public burthens; and that 
 portion must be determined by the legislature. This vital power 
 may be abused, but the interest, wisdom and justice of the repre- 
 sentative body, and its relations with its constituents, furnish the 
 only security against unjust and excessive taxation, as well as 
 against unwise legislation." 
 
 Assuming this, as we safely may, to be sound doctrine, it must 
 be conceded that the power of taxation and of apportioning tax- 
 ation, or of assigning to each individual his share of the burthen, is 
 vested exclusively in the legislature, unless this power is limited 
 or restrained by some constitutional provision. The power of taxing 
 and the power of apportioning taxation are identical and insep- 
 arable. Taxes cannot be laid without apportionment; and the 
 power of apportionment is, therefore, unlimited, unless it be re- 
 strained as a part of the power of taxation. 
 
 There is not, and since the original organization of the state 
 government there has not been any such constitutional limitation
 
 16 NATURE OF POWER TO TAX. 
 
 or restraint. The people have never ordained that taxation must 
 be limited or regulated by any or either of the rules laid down by 
 the supreme court in the case of The People v. The Mayor of 
 Brooklyn (G Barb. 209), or in the case now under consideration. 
 They have not ordained that taxation shall be general, so as to 
 embrace all persons or all taxable persons within the state, or 
 within any district, or territorial division of the state; nor that 
 it shall or shall not be numerically equal, as in the case of a capita- 
 tion tax ; nor that it must be in the ratio of the value of each 
 man's land, or of his goods, or of both combined; nor that a tax 
 "must 'be co-extensive with the district, or upon all the property 
 in a district which has the character of and is known to the law 
 as a local sovereignty.'* Nor have they ordained or forbidden thai 
 a tax shall be apportioned according to the benefit which each tax- 
 payer is supposed to receive from the object on which the tax is 
 expended. In all these particulars the power of taxation is un- 
 restrained. 
 
 The application of any one of these rules or principles of appor- 
 tionment, to all cases, would be manifestly oppressive and unjust. 
 Either may be rightly and wisely applied to the particular exigency 
 to which it is best adapted. 
 
 Taxation is sometimes regulated by one of these principles, and 
 sometimes by another; and very often it has been apportioned 
 without reference to locality or to the tax-payer's ability to con- 
 tribute, or to any proportion between ihe burthen and the benefit. 
 The excise laws and taxes on carriages and watches are among the 
 many examples of this description of taxation. Some taxes affect 
 classes of inhabitants only. All duties on imported goods are taxes 
 on the class of consumers. The tax on one imported article falls 
 on a large class of consumers, while the tax on another affects com- 
 paratively a few individuals. The duty on one article consumed 
 by one class of inhabitants is twenty per cent of its value; while 
 on another, consumed by a different class, it is forty per cent. The 
 duty on one foreign commodity is laid for the purpose of revenue 
 mainly, without reference to the ability of its consumers to pay; a? 
 in the case of the duty on salt. The duty on another is laid for 
 the purpose of encouraging domestic manufacturers of the same 
 article; thus compelling the consumer to pay a higher price to 
 one man than he could otherwise have bought the article for from 
 another. These discriminations may be impolitic, and in some 
 oases unjust; but if the power of taxation upon importations had 
 not been transferred by the people of this state to the federal gov-
 
 PEOPLE EX REL. GRIFFIN V. MAYOR. 17 
 
 eminent, there could have been no pretence for declaring them to 
 be unconstitutional in state legislation. 
 
 A property tax for the general purposes of the government, 
 either of the state at large or of a county, city or other district, is 
 regarded as a just and equitable tax. The reason is obvious. It 
 apportions the burthen according to the benefit more nearly than 
 any other inflexible rule of general taxation. A rich man derives 
 more benefit from taxation, in the protection and improvement of 
 his property, than a poor man, and ought therefore to pay more. 
 But the amount of each man's benefit in general taxation cannot 
 be ascertained and estimated with any degree of certainty; and 
 for that reason a property tax is adopted instead of an estimate of 
 benefits. In local taxation, however, for special purposes, the local 
 benefits may in many cases be seen, traced and estimated to a 
 reasonable certainty. At least this has been supposed and as- 
 sumed to be true by the legislature, whose duty it is to prescribe 
 rules on which taxation is to be apportioned; and whose determina- 
 tion of this matter, being within the scope of its lawful power, is 
 conclusive. 
 
 In the case of The People v. Brooklyn, before referred to, it was 
 said that a tax to be valid must be apportioned "upon principles of 
 just equality," and upon all the property in the same political dis- 
 trict; and that this is a fundamental principle of free government, 
 which, although not contained in the constitution, limits and con- 
 trols the power of the legislature. This is new and it seems to 
 rne to be dangerous doctrine. It clothes the judicial tribunals with 
 the power of trying the validity of a tax by a test neither de- 
 scribed nor defined by the constitution. If by this test we may 
 condemn an assessment apportioned according to the relation be- 
 tween burthen and benefit, we may with far better reason condemn 
 a capitation tax on the ground that numerical equality is not just 
 equality; or a general property tax for a local object, because it 
 compels one portion of the community to pay more than their just 
 share for the benefit of another portion. All discriminations in 
 the taxation of property, and all exemptions from taxation on 
 grounds of public policy, would fall by the application of this test. 
 If this doctrine prevails it places the power of the courts above 
 that of the legislature in a matter affecting not only the vital inter- 
 ests, but the very existence of the government. It assumes that 
 the apportionment of taxation is to be regulated by judicial and 
 not by legislative discretion. It obstructs the exercise of powers 
 which belong to and are inherent in the legislative department^
 
 18 NATURE OF POWER TO TAX. 
 
 and restrains the action in that branch of the government in cases 
 in which the constitution has left it free to act. 
 
 '^ .. . 
 
 There never was any just foundation for saying that local tax- 
 ation must necessarily be limited by or co-extensive with any previ- 
 ously 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 burthen. There being no 
 constitutional prohibition, the legislature may create a district for 
 that special purpose, or they may tax a class of lands or person^ 
 benefitted, to be designated by the public agents appointed for that 
 purpose, without reference to town, county or district lines. Gen- 
 eral taxation for such local objects is manifestly unjust. It bur- 
 thens those who are not benefitted, and benefits those who are not 
 burthened. This injustice has led to the substitution of street 
 assessments in place of general taxation; and it seems to be im- 
 possible to deny that in the theory of their apportionment they are 
 far more equitable than general taxation for the purpose they are 
 designed for 
 
 It has been said that the benefits to be derived from the grading 
 and paving of a street are sometimes fanciful and imaginary, and 
 always uncertain and incapable of being estimated with that exact- 
 ness which is necessary for the purposes of justice to the individ- 
 uals assessed. But this is a consideration to be addressed to the 
 legislature, and not to the judicial authorities. The courts cannot 
 assume that this proposition is true in point of fact. The legis- 
 lature has evidently acted on the belief that it is untrue. That mis- 
 takes may have happened, that abuses may have been practiced, and 
 that injustice may have been done in making street assessments it 
 is not necessary to deny. Mistakes, abuses and injustice have often 
 occurred in general taxation. These are not grounds on which 
 either system of supplying the public treasury can be denounced as 
 unconstitutional. If the systems are imperfect they should be re- 
 formed by the legislature. If street assessments are in their prac- 
 tical operation oppressive and unjust, the statutes which authorize 
 them should be repealed. The remedy for unjust or unwise legis- 
 lation is not to be administered by the courts. It remains in the
 
 PEOPLE EX REL. GRIFFIN V. MAYOR. 19 
 
 hands of the people, and is to be wrought out by means of a change 
 in the representative body if it cannot be otherwise obtained. The 
 constitution has imposed upon the legislature the duty of restrain- 
 ing the power of municipal corporations in making assessments, and 
 of preventing abuses therein. (Art. 8, sec. 9.) To assume that 
 this duty has been and will be neglected, is a denial of that reason- 
 able confidence which one part of the government ought always to 
 entertain towards the others. The danger of abuse which is sup- 
 posed to exist in the making of street assessments exists in a 
 greater or less degree, in every conceivable system of taxation, ac- 
 cording to value; and if the courts have authority to annul an 
 assessment on this ground, they have the like authority to annul any 
 other tax assessed upon valuation, on the same ground. It need 
 not be said that this would be a much more alarming power than 
 the unlimited right of taxation intrusted by the people to their 
 
 representatives 
 
 This system of taxation was in force at the time of the making 
 and adoption of our first, second and third constitutions, and has 
 stood in our statute books along with the constitutions, from 1777 
 until now, without prohibition or restraint. Sales of real estate to 
 large amounts have been- made, and the lands so sold are now held 
 on the faith of the validity of these assessment laws. Proceedings 
 under them have been brought before the supreme court for 
 review continually during the last thirty years. They have been liti- 
 gated often on the ground of irregularity, and sometimes upon con- 
 stitutional objections. They have been confirmed in cases almost 
 \vithout number. If the uniform practice of the government, from 
 its origin, can settle any question of this nature, the power of the 
 legislature to exercise this kind of taxation would seem to be 
 established by it. 
 
 The judgment of the supreme court should be reversed, and the 
 assessments affirmed. 
 Ordered accordingly. 
 
 As to the power of the courts in some states to control the discretion of 
 the legislature in determining the question of benefit in the case of special 
 assessments see Hammett v. Philadelphia 65 Pa. St. 146; State v. Newark, 
 3 Dutcher (N. J. L.) 186. Infra.
 
 20 NATURE OF POWER TO TAX. 
 
 VEAZIE BANK V. FENNO. 
 
 Supreme Court of the United States. December, 1869. 
 8 Wallace, 533. 
 
 On certificate of division for the Circuit Court for Maine. 
 
 Congress passed, July 13, 1866, an act the second clause of the 
 9th section of which enacts (14 Stat. at Large 146) : 
 
 "That every National banking association, state bank, or state 
 banking association, shall pay a tax of ten per centum on the 
 amount of notes of any person, state bank, or state banking asso- 
 ciation, used for circulation and paid out by them after the 1st 
 day of August, 1866, and such tax shall be assessed and paid in 
 such manner as shall be prescribed by the Commissioner of Internal 
 Revenue." 
 
 Under this act a tax of ten per cent was assessed upon the 
 Veazie Bank, for its bank notes issued for circulation after the 
 day named in the act. 
 
 The Veazie Bank was a corporation chartered by the state of 
 Maine, with the authority to issue bank notes for circulation, and 
 the notes upon which the tax imposed by the act was collected 
 were issued under this authority. There was nothing in the case 
 showing that the bank sustained any relation to the State as a 
 financial agent, or that its authority to issue notes was conferred 
 or exercised with any special reference to other than private in- 
 terests. 
 
 The bank declined to pay the tax, alleging it to be unconstitu- 
 tional, and the collector of internal revenue, one Fenno, was pro- 
 ceeding to make a distraint in order to collect it, with penalty and 
 costs, when, in order to prevent this, the bank paid it under pro- 
 test. An unsuccessful claim having been made on the commis- 
 sioner of internal revenue for reimbursement, suit was brought 
 by the bank against the collector, in the court below. 
 
 The case was presented to that court upon an agreed statement 
 of facts, and, upon a prayer for instructions to the jury, the judges 
 found themselves opposed in opinion on three questions, the first 
 of which the two others differing from it in form only and not 
 needing to be recited was this: 
 
 "Whether the second clause of the 9th section of the act of Con- 
 gress of the 13th of July, 1866, under which the tax in this case 
 was levied and collected is a valid and constitutional law." 
 
 The CHIEF JUSTICE delivered the opinion of the court 
 
 In support of the position that the act of Congress, so far a*
 
 VEA2IE BANK V. FENNO. 21 
 
 it provides for the levy and collection of this tax, is repugnant to 
 the Constitution, two propositions have been argued with much 
 force and earnestness. 
 
 The first is that the tax in question is a direct tax, and has not 
 been apportioned among the states agreeably to the Constitution. 
 
 The second is that the act imposing the tax impairs a franchise 
 granted by the State, and that Congress has no power to pass any 
 law with that intent or effect. 
 
 The tax under consideration is a tax on bank cir- 
 culation, and may very well be classed under the head of duties. 
 Certainly it is not, in the sense of the Constitution, a direct tax. 
 It may be said to come within the same category of taxation a^ 
 the tax on incomes of insurance companies, which this Court, at 
 the last term, in the case of Pacific Insurance Co v. Soule (7 Wal- 
 lace 434), held not to be a direct tax. 
 
 Is it then a tax on a franchise granted by a State, which Con- 
 gress, upon any principle exempting the reserved powers of the 
 States from impairment by taxation, must be held to have no au- 
 thority to lay and collect? 
 
 We do not say that there may not be such a tax. It may be 
 admitted that the reserved rights of the states, such as the right 
 to pass laws, to give effect to laws through executive action, to 
 administer justice through the courts, and to employ all necessar} 
 agents for legitimate purposes of State government, are not proper 
 subjects of the taxing power of Congress. But it cannot be ad- 
 mitted that franchises granted by a state are necessarily exempt 
 from taxation 
 
 A railroad company, in the exercise of its cor- 
 porate franchises, issues freight receipts, bills of lading, and pas- 
 senger tickets; and it cannot be doubted that the organization of 
 railroads is quite as important to the State as the organization of 
 banks. But it will hardly be questioned that these contracts of the 
 company are objects of taxation within the powers of Congress, and 
 not exempted by any relation to the State which granted the char- 
 ter of the railroad. And it seems difficult to distinguish the tax- 
 ation of notes issued for circulation from the taxation of these rail- 
 road contracts. Both description? of contracts are means of profit 
 to the corporations which issue them ; and both, as we think, may 
 properly be made contributory to the public revenue. 
 
 It is insisted, however, that the tax in the case before us is 
 excessive, and so excessive as to indicate a purpose on the part of
 
 22 NATURE OF POWER TO TAX. 
 
 Congress to destroy the franchise of the bank, and is, therefore, 
 beyond the constitutional power of Congress. 
 
 The first answer to this is that the judicial cannot prescribe to 
 the legislative department of the government limitations upon the 
 exercise of its acknowledged powers. The power to tax may be 
 exercised oppressively upon persons, but the responsibility of the 
 legislature is not to the courts, but to the people by whom its 
 members are elected. So, if a particular tax bears heavily upon a 
 corporation or a class of corporations, it cannot, for that reason 
 only, be pronounced contrary to the Constitution. 
 
 But there is another answer which vindicates equally the wisdom 
 and the power of Congress. 
 
 It cannot be doubted that under the Constitution, the power to 
 provide a circulation of coin is given to Congress. And it is settled 
 by the uniform practice of the government and by repeated de- 
 cisions, that Congress may constitutionally authorize the emission 
 of bills of credit. It is not important here to decide whether the 
 quality of legal tender, in payment of debts, can be constitutionally 
 imparted to these bills; it is enough to say that there can be no 
 question of the power of the government to emit them; to make 
 them receivable in payment of debts to itself; to fit them for use 
 by those who see fit to use them in all the transactions of com- 
 merce; to provide for their redemption; to make them a cur- 
 rency, uniform in value and description, and convenient and useful 
 for circulation. These powers, until recently, were only partially 
 and occasionally exercised. Lately, however, they have been called 
 into full activity, and Congress has undertaken to supply a cur- 
 rency for the entire country. 
 
 The methods adopted for the supply of this currency were briefly 
 explained in the first part of this opinion. It now consists of coin, 
 of United States notes, and of the notes of the National banks. 
 Both descriptions of notes may be properly described as bills of 
 credit, for both are furnished by the government; both are issued 
 on the credit of the government; and the government is responsi- 
 ble for the redemption of both; primarily as to the first description, 
 and immediately upon default of the bank as to the second. When 
 these bills shall be made convertible into coin, at the will of the 
 holder, this currency will, perhaps, satisfy the wants of the com- 
 munity, in respect to a circulating medium, as perfectly as any 
 mixed currency that can be devised. 
 
 Having thus, in the exercise of undisputed constitutional powers, 
 undertaken to provide a currency for the whole country, it cannot
 
 REES V. CITY OF WATERTOWX. 23 
 
 be questioned that Congress may, constitutionally, secure the benefit 
 of it to the people by appropriate legislation. To this end, Con- 
 gress has denied the quality of legal tender to foreign coins, and 
 has provided by law against the imposition of counterfeit and base 
 coin on the community. To the same end Congress may restrain, 
 by suitable enactments, the circulation, as money, of any notes not 
 issued under its own authority. Without this power, indeed, its 
 attempts to secure a sound and uniform currency for the country 
 must be futile. 
 
 Viewed in this light, as well as in the other light of a duty on 
 contracts or property, we cannot doubt the constitutionality of the 
 tax under consideration. 
 
 The three questions certified from the Circuit Court of the Dis- 
 trict of Maine must, therefore, be answered affirmatively. 
 
 As to the power of the legislature to make use of the power of taxation 
 with the purpose of discouraging a particular business or occupation see 
 Youngblood v. Sexton, 32 Mich., 406, Infra. 
 
 REES V. CITY OF WATERTOWX. 
 
 Supreme Court of the United States. October, 1873. 
 19 Wallace 107. 
 
 Appeal from the Circuit Court for the Western District of Wis- 
 consin, the case being thus: 
 
 Rees, a citizen of Illinois, being owner of certain bonds issued 
 under authority of an act of the Legislature of the State of Wis- 
 consin, by the city of Watertown, in that State, to the Watertown 
 and Madison Railway Company, and by the company sold for its 
 benefit, brought suit in the Circuit Court of the United States for 
 the District of Wisconsin against the city, and in 1867, recovered 
 two judgments for about $10,000. 
 
 In the summer of 1868 he issued execution upon the two judg- 
 ments thus obtained, which were returned whojly unsatisfied. 
 
 In November of the same year he procured from the United 
 States Circuit Court a peremptory writ of mandamus, directing the 
 city of Watertown to levy and collect a tax upon the taxable prop- 
 erty of the city, to pay the said judgments; but before the writ 
 could be served, a majority of the members of the city council 
 resigned their offices. This fact was returned by the marshal, and 
 proceedings upon the mandamus thereupon ceased. 
 
 In May, 1869, another board of aldermen having been elected,
 
 34 NATURE OF I'OWEK TO TAX. 
 
 Rets procured another writ of m;:iu];inms to be issued, which writ 
 was served on all the aldermen except one Holger, who was sick 
 at the time of the service upon the others. No steps were taken 
 to comply with the requisition of the writ. An order to show cause 
 why the aldermen should not be punished for contempt, in not 
 complying with its requirements, was obtained, and before its re- 
 turn day six of the aldermen resigned their offices, leaving in office 
 but one more than a quorum, of whom the said Holger, upon whom 
 the writ had not been served, was one. Various proceedings were 
 had and various excuses made, the whole resulting in an order that 
 the aldermen should at once levy and collect the tax; but before 
 the order could be served upon Holger, he resigned his office, and 
 again the board was left without a quorum. Nothing was accom- 
 plished by their effort in aid of the plaintiff, but fines were im- 
 posed upon the recusant aldermen, which were ordered to be ap- 
 plied in discharge of the costs of the proceedings. 
 
 In October, 1870, the plaintiff obtained a third writ of man- 
 damus, which resulted as the former ones had done, and by the 
 same means, on the part of the officers of the city. A special elec- 
 tion was ordered to be held to fill the vacancies of the aldermen so 
 resigning, but no votes were cast, except three in one ward, and 
 the person for whom they were cast refused to qualify. No part of 
 the debt was ever paid. 
 
 By the charter of the city of Watertown it was thus enacted: 
 
 "Nor shall any real or personal property of any inhabitant of 
 said city, or any individual or corporation, be levied upon or sold 
 by virtue of any execution issued to satisfy or collect any debt, obli- 
 gation, or contract of said city." 
 
 The case was tried in June, 1872, before two judges, holding 
 the Circuit Court upon these questions: 
 
 "1. Whether, when the principal and interest on the bonds were 
 unpaid, as well as the judgment, and there being no property on 
 which to levy an execution, the plaintiff was confined to a remedy 
 at law, by mandamus or otherwise, to enforce the payment of his 
 judgment recovered in this court. 
 
 "2. Whether it was competent for the court, as a court of 
 equity, on the failure of the officers of the city of Watertown to 
 levy the tax as required by law, referred to in the bill, through 
 their neglect, refusal, absence, or resignation, to appoint the mar- 
 shall of the court to levy and collect the tax to pay the judgment."
 
 REES V. CITY OF WATERTOWX. 25 
 
 The judges were divided in opinion upon them and the bill wa* 
 dismissed. 
 
 The case was now here on certificate of division and appeal, the 
 error assigned being that the court dismissed the bill, when it ought 
 to have given the relief prayed for. 
 
 Mr. Justice HUNT delivered the opinion of the Court. 
 
 We are of the opinion that this Court has not the power to direct 
 a tax to be levied for the payment of these judgments. This power 
 to impose burdens and raise money is the highest attribute of 
 sovereignty, and is exercised, first, to raise money for public pur- 
 poses only; and, second, by the power of legislative authority only. 
 It is a power that has not been extended to the judiciary. Espe- 
 cially is it beyond the power of the Federal judiciary to assume 
 the place of a State in the exercise of this authority at once so 
 delicate and so important. The question is not entirely new in 
 this court. 
 
 In the case of Supervisors v. Rogers (7 Wallace, 175), an order 
 was made by this Court appointing the marshal a commissioner, 
 with power to levy a tax upon the taxable property of the county, 
 to pay the principal and interest of certain bonds issued by the 
 county, the payment of which had been refused. That case was 
 like the present, except that it occurred in the State of Iowa, and 
 the proceeding was taken by the express authority of a statute of 
 that State. The Court say: "The next question is as to the ap- 
 pointment of the marshal as a commissioner to levy the tax in 
 satisfaction of the judgment. This depends upon a provision of 
 the code of the State of Iowa. This proceeding is found in a chap- 
 ter regulatinsr proceedings in the writ of mandamus, and the power 
 is given to the Court to appoint a person to discharge the duty en- 
 joined by the peremptory writ which the defendant had refused to 
 perform, and for which refusal he was liable to an attachment, and 
 is express and unqualified. The duty of levying the tax upon the 
 taxable property of the county to pay the principal and interest of 
 these bonds was specially enjoined upon the board of supervisors 
 by the act of the Legislature that authorized their issue, and the 
 appointment of the marshal as a commissioner in pursuance of the 
 above section is to provide for the performance of this duty where 
 the board has disobeyed or evaded the law of the State and the 
 peremptory mandate of the Court." 
 
 The State of Wisconsin, of which the city of Watertown is a
 
 26 NATURE OF POWER TO TAX. 
 
 municipal corporation, has passed no such act. The case of Super- 
 visors v. Rogers is, therefore, of no authority in the case before 
 u?. The appropriate remedy of the plaintiff was and is a writ of 
 mandamus (Riggs v. Johnson County, 6 Wallace, 193). This may 
 be repeated as often as the occasion requires. It is a judicial writ, 
 a part of a recognized course of legal proceedings. In the present 
 case it has been thus far unavailing, and the prospect of its future 
 success is, perhaps, not flattering. However this may be, we are 
 aware of no authority in this Court to appoint its own officer to 
 execute the duty thus neglected by the city in a case like the 
 present. 
 
 In Welch v. St. Genevieve (10 Am. L. Reg., N. S., 512), at a 
 Circuit Court for the District of Missouri, a tax was ordered to be 
 levied by the marshal under similar circumstances. We are not 
 able to recognize the authority of the case. No counsel appeared 
 for the city (Mr. Reynolds as amicus curiae only) ; no authori- 
 ties are cited which sustain the position taken by the court; the 
 power of the court to make the order is disposed of in a single 
 paragraph, and the execution of the order suspended for three 
 months to give the corporation an opportunity to select officers and 
 itself to levy and collect the tax, with the reservation of a longer 
 suspension if it should appear advisable. The judge, in delivering 
 the opinion of the court, states that the case is without precedent, 
 and cites in support of its decision no other cases than that of 
 Riggs v. Johnson County (9 Am. L. Reg., N. S., 415), and Lansing 
 v. Treasurer (6 Wallace, 166). The first case cited does not touch 
 the present point. The Question in that case was whether a man- 
 damus having been issued by a United States court in the regu- 
 lar course of proceedings, its operation could be stayed by an in- 
 junction from the State Court, and it was held that it could not be. 
 It is probable that the case of Supervisors v. Rogers (7 Wallace, 
 175), was the one intended to be cited. This case has already been 
 considered. 
 
 The case of Lansing v. Treasurer (also cited) arose within the 
 State of Iowa. It fell within the case of Supervisors v. Rogers and 
 was rightfully decided because authorized by the express statute of 
 the State of Iowa. It offered no precedent for the decision of a 
 case arising in a State where such a statute does not exist. 
 
 Entertaining the opinion that the plaintiff has been unreason- 
 ably obstructed in the pursuit of his legal remedies we should be 
 quite willing to give him the aid requested, if the law permitted it.
 
 CYPEESS POND DEAINING CO. V. HOOPEE. 27 
 
 We cannot, however, find authority for so doing, and we acquiesce 
 in the conclusion of the court below, that the bill must be dis- 
 missed. 
 
 Judgment affirmed. 
 
 Mr Justice CLIFFORD, with whom concurred Mr. Justice SWAYNE, 
 dissenting. 
 
 The court may however by mandamus order the exercise of its taxing 
 powers by a municipal corporation or official authority. State v. New Orleans, 
 37 La. Ann. 16, Infra. 
 
 The power to tax being a legislative power, executive and administrative 
 bodies have not the right to levy taxes in the absence of legislative authoriza- 
 tion. Baldwin v. City Council, 53 Ala., 437 ; State v. Sickles, 4 Zabriskie (N. 
 J. L.) 125 Infra. 
 
 II. DELEGATION OF THE TAXING POWER. 
 
 1. To Private Corporations. 
 CYPEESS POND DEAINING COMPANY V. HOOPEE ET AL. 
 
 Court of Appeals of Kentucky. Summer Term, 1859. 
 2 Metcalfe, *350. 
 
 Judge DUVALL delivered the opinion of the Court. 
 
 By an Act of the Legislature, approved February 13, 1856 (Ses- 
 sion Acts 1855-56, page 292), George Payne, George Henshaw, 
 Thomas E. Given, James D. Ames, A. L. Churchill, and Willis G. 
 Hughes, and, the inhabitants living within the boundaries described 
 in a subsequent section of the act, were "incorporated and made a 
 body politic, by the name of the Cypress Pond Draining Company; 
 and they and their successors shall have perpetual succession, and 
 full power and authority to drain, and keep drained, the lands 
 within the boundary hereinafter described, at the costs and charges 
 of the owners and proprietors of the lands within said boundary: 
 and to make all necessary and proper contracts therefor; to sue 
 and be sued, plead and be impleaded, in all courts." 
 
 Power is given to the company to appoint all officers and agents 
 necessary to carry into effect the provisions of the act, who are to 
 be under the control of the president and managers of the com- 
 pany, and be removed by the company at pleasure. 
 
 The board of managers is made to consist of the persons above 
 named, who, out of their number, are to elect a president, and to 
 have power to fill all vacancies that may occur in the board. The 
 boundary of the territory over which the powers of the corporation 
 
 *Century edition, Louisville, 1899.
 
 28 NATURE OF POWER TO TAX. 
 
 are to be exercised is minutely defined, and comprehends au area 
 of 14,621 acres, according to a survey which was subsequently 
 made, as directed in the act. For the year 1856, and each year 
 thereafter for ten years, the company is authorized to collect, on 
 each acre of land within the boundary, a tax not exceeding twenty- 
 five cents per acre, to be fixed by the board, who may cause an 
 assessment to be made of each acre of land within the boundary, 
 and list the same for collection with the sheriff of Union county, 
 wiio shall collect and pay over the same to the order of the board. 
 The sheriff shall have the same power to collect the taxes that he 
 has to collect executions, and be entitled to the same compensation. 
 With the money thus collected the board is required to drain cer- 
 tain creeks and ponds within said boundary, in such manner as 
 they shall deem most practicable. The owners of any land sold 
 under the provisions of the act are to have two years from the 
 day of sale to redeem the same, by paying to the purchaser the 
 amount of the sale, with ten per centum per annum on the amount 
 
 Pursuant to the provisions of this act, a board of managers con- 
 sisting of six persons named, was regularly organized. A tax of 
 twenty-five cents on each acre of land embraced within the desig- 
 nated boundary was assessed, and the tax lists placed in the hands 
 of the sheriff for collection. 
 
 The appellees, Hooper and thirty-three others, embraced within 
 the corporate boundary and subjected to taxation under the act, 
 filed this petition in equity in which they sought to enjoin the 
 company from further proceedings to enforce the collection of the 
 tax, upon the grounds that, as to them, the tax so assessed is un- 
 just, unequal, and oppressive, and that the act authorizing it is un- 
 constitutional; that said act was gotten up and passed without 
 their knowledge or consent; that its passage was procured by per- 
 sons who own a large quantity of inundated and wet lands within 
 said boundary, which is comparatively worthless, but which, when 
 drained as proposed, will be greatly enhanced in value, and was the 
 object of the owners thus to enrich themselves by reclaiming their 
 lands at the expense of the plaintiffs; that the lands owned by 
 many of the plaintiffs are high and broken, not subject to inun- 
 dation, and therefore not to be increased in value or otherwise 
 benefited by the proposed draining; that many of them have re- 
 sided on their farms within the boundary for a great many years. 
 and that the creeks, ponds and wet lands to be drained have been 
 of no detriment or disadvantage to them in any way. 
 
 The defendants, the president and managers of the company,
 
 CYPRESS POND DRAINING CO. V. HOOPER. 29 
 
 .answered, denying that in procuring the passage of the act they 
 were influenced by the motives ascribed to them, but insist that 
 their object was to promote their own interest, at their own ratable 
 expense, and the interest of others. They say the lands of the 
 plaintiffs will be increased in value for agricultural purposes, and 
 the health of the neighborhood improved; that the plaintiffs had 
 knowledge of the intended application to the Legislature for the 
 passage of the act, and that some of them signed the petition for 
 that purpose. 
 
 Upon final hearing the Circuit Court was of opinion that the 
 plaintiffs were entitled to the relief sought by them, and perpetu- 
 ated their injunction. From that judgment the company has ap- 
 pealed. 
 
 Upon the case thus presented the question arises, is the act of 
 incorporation, the enforcement of which is sought to be resisted by 
 the appellees, obligatory and binding upon them? 
 
 The corporation created by the act is essentially and strictly 
 private. Its objects and purposes do not even partake of a public- 
 nature, but are confined exclusively to the private interests of the 
 persons subjected to its operation. 
 
 But the constitutional power of the Legislature to impose local 
 taxation for the accomplishment of local purposes, is too well settled 
 to admit of question at this day. The principle has also been re- 
 peatedly recognized by the adjudications of this Court that an en- 
 actment peremptorily ordering the imposition of such local burthen 
 would not depend for its validity upon the question whether it had 
 been passed upon the petition of a majority, or less than a majority, 
 of the 'citizens to be affected by it, or without a petition from any, 
 or merely upon the general knowledge of the Legislature. (Slack 
 v. Maysville and Lexington It. R. Co., 13 B. Mon., 26; Cheaney v. 
 Hooser, 9 B. Mon., 350.) 
 
 The power and discretion of the Legislature in the matter of 
 local taxation is not, however, unlimited. Ample protection to the 
 citizen against the oppression which might result from the arbi- 
 trary exercise of this power is secured in the clause of the Consti- 
 tution which prohibits any man's property from being taken or 
 applied to public use without just compensation made. (Art. 13, 
 sec. 14.) 
 
 It is clear, upon the facts established by the proof, that the 
 operation and effect of the act incorporating this company, what-
 
 30 NATl?RE OF POWER TO TAX. 
 
 ever may have been the object of those who procured its passage, 
 is to appropriate the property of the appellees, without their con- 
 sent, to the use of other private individuals merely; that a burthen 
 has been imposed upon the appellees without any view to their 
 interest in the objects to be accomplished by it; that it is a c-asi- 
 of palpable and flagrant inequality in the burthen as imposed upon 
 the persons and property included within the corporate boundary, 
 and that the appellees are subjected to a local burthen for the pri- 
 vate benefit of others, and for purposes in which they have no 
 appreciable interest, and to which they are, therefore, not justly 
 bound to contribute. 
 
 We need not comment upon some of the extraordinary provisions 
 of the act of incorporation, by which the six managers named in 
 the act of incorporation are given full power to assess and appro- 
 priate the taxes, to fill all vacancies in their own body, and, in 
 short, to control and manage the entire business of the corporation, 
 the other members having no voice or agency whatever in the man- 
 agement. 
 
 For the reasons already stated, we concur with the court below in 
 the opinion that, as to the appellees, the act in question is inopera- 
 tive and void, and the judgment is therefore affirmed. 
 
 2. To Municipal Corporations. 
 
 EX PARTE THE CITY COUXCIL OF MONTGOMERY, IN 
 
 RE KNOX. 
 
 Supreme Court of Alabama. December, 1879. 
 64 Alabama, 463. 
 
 In this case, a petition was filed in this Court, in the name of 
 the State, on the relation of the City Council of Montgomery, ask- 
 ing that a certiorari, or such other remedial writ as might be 
 necessary, directed to the Hon. Jas. Q. Smith, judge of the Second 
 Judicial Circuit, to remove into this Court for revision the pro- 
 ceedings had before said Circuit Judge on a petition for habeas 
 corpus sued out by Robert H. Knox, to procure his discharge from 
 custody and imprisonment under a judgment and sentence rendered 
 by the mayor of the city of Montgomery, for an alleged violation of 
 a municipal ordinance. The ordinance imposed on lawyer? a tax 
 of sixteen dollars, as the price of a license for practicing their pro- 
 fession in the city of Montgomery, and provided that any person
 
 EX PARTE MONTGOMERY, IN RE KNOX. 31 
 
 who engaged in any business or occupation, or practiced any pro- 
 fession, for which a license was required, without first having pro- 
 cured a license as required, shall be guilty of a misdemeanor, and 
 shall be fined, for each day, not less than ten, nor more than one 
 hundred dollars; and by another ordinance it was further pro- 
 vided, that "when any person is convicted and fined for a breach 
 of a city ordinance, and fails to pay the fine and costs, the mayor 
 may commit him to custody, or to labor on the streets or other 
 works of the city, one day for every dollar of the fine and costs, 
 but not exceeding one hundred dollars in all for any one offense." 
 Knox was a lawyer, regularly licensed by the Supreme Court, and 
 practicing his profession in Montgomery; and having failed to 
 take out a license, as required by the city ordinance, he was ar- 
 rested and tried in the mayor's court, before one of the aldermen 
 acting as mayor; and being found guilty, he was fined fifty dollars 
 and costs, and, in default of payment, was sentenced to hard labor 
 for the city, for the term of fifty-three days. Knox thereupon sued 
 out a writ of habeas corpus, returnable before the Hon. J. Q. 
 Smith; and on the hearing of the case, the only evidence being the 
 judgment against him and the several ordinances under which the 
 proceedings were had, the Circuit Judge discharged him. A copy 
 of the city ordinances, the judgment and sentence against Knox, 
 and the proceedings on the petition for habeas corpus, were made 
 exhibits to the petition filed in this court; and the prayer of the 
 petition was for a certiorari, mandamus, or other remedial writ, to 
 bring the proceedings on habeas corpus before this court for 
 review. 
 
 BRICKELL, C. J. By the charter of the city of Montgomery, the 
 general assembly has conferred on the mayor and aldermen power 
 to assess, levy and 'collect annually, a tax not exceeding one-half 
 of one per centum on the value of real estate; and also "power 
 and authority to pass laws for the assessment, levy and collection 
 of taxes" on various occupations, trades, employments and profes- 
 sions; and among others, "on lawyers, doctors, dentists, photogra- 
 phers, and dafmerrean artists, a tax not exceeding fifty dollars per 
 annum" It is not now to be doubted that, in the absence of con- 
 stitutional restraint or limitation, the General Assembly may dele- 
 gate to municipal corporations the power of taxation, in such man- 
 ner, and to such extent, as it may deem expedient. It cannot con- 
 fer on these corporations the power to tax persons or property 
 which it does not itself possess; nor can the delegation exceed any 
 limitation the constitution may impose. But, keeping within the
 
 32 NATURE OF POWER TO TAX. 
 
 boundaries of its own power, to municipal corporations it may dele- 
 gate the power to tax any' and every subject of taxation within the 
 corporate limits, for municipal purposes, which the State can tax 
 for its own purposes. Not being restrained by the constitution, 
 that the power to license or tax occupations, trades, employments, 
 and professions, may by the General Assembly be delegated to 
 municipal corporations, is not now in this court, an open question. 
 Yuille v. Mayor, 3 Ala. 137; Carroll v. Mayor, 12 Ala. 173; Osborne 
 v. Mayor, 44 Ala. 493; Goldthwaite v. City Council, 50 Ala. 486; 
 City Council v. Shoemaker, 51 Ala. 144. 
 
 3. The ordinance of the city of Montgomery requires, that any 
 person engaged in any trade, business or profession, on which a 
 tax is imposed, shall therefor obtain license. Engaging in such 
 business without obtaining license, is declared a misdemeanor; and 
 for each day such business, trade, or profession is carried on with- 
 out license, a fine of not less than ten, nor more than one hun- 
 dred dollars may be recovered. It is now urged, that the ordinance 
 is void that the express power of taxation which is conferred does 
 not include the power to exact a license as a condition to engage in 
 any of the trades, &c., which may be taxed. The power to tax 
 occupations, privileges, &c., includes the power to license them, 
 and to compel the payment of the tax as a condition precedent 
 to entering upon such occupation, or exercising such privilege. 
 Burroughs on Taxation 392; City Council v. Shoemaker, supra. 
 
 Nor can we perceive that the ordinance is objectionable, because 
 it visits with punishment by hard labor for the city a citizen who 
 refuses to pay the tax, and yet engages in any one of the occupa- 
 tions for which a license is required. In that respect the ordinance 
 is similar to the revenue statutes of the State; and unless such 
 penalties are imposed, the corporate power of taxation could be de- 
 fied and nullified by the refractory. The charter expressly confers 
 on the city council the power to enact ordinances with penalties; 
 and declares that "all persons convicted of any breach of the laws 
 and ordinances of the city, failing to pay any fines and costs that may 
 be imposed," may be placed at work and labor for the city, or under 
 its direction, until such fine and costs are paid. 
 
 4. The omission of the State to tax lawyers does not affect 
 the express power of the city to impose a tax upon them. That 
 power is not thereby abrogated. It is of frequent occurrence, that 
 the State omits to impose taxes of this kind, or omits some parti i ;:- 
 lar subject of taxation, to which the power of taxation of municipal
 
 BALDWIN V. CITY COUNCIL, 33 
 
 corporations extends, and no diminution of that power is intended. 
 At one period in the history of the State, for six or seven years, no 
 State taxes were levied; but it was never supposed that, in con- 
 sequence, the power of municipal corporations, conferred by their 
 charters, was affected. 
 
 6. The City Council did not exceed its power in the imposition 
 of the tax, nor in any of the ordinances which have been passed to 
 enforce its collection. The jurisdiction of the mayor, or of the 
 alderman acting in his stead, to judge whether Knox had violated 
 the ordinance, not being disputed, it follows, that the circuit 
 judge had not jurisdiction, on habeas corpus, to discharge Knox 
 from imprisonment; and his action in the premises is simply void, 
 furnishing no obstacle to re-arrest under the judgment of the 
 mayor. . . . . . 
 
 BALDWIN V. CITY COUNCIL. 
 PECK V. CITY COUNCIL. 
 
 Supreme Court of Alabama. December, 1875. 
 53 Alabama US1. 
 
 BRICKELL, C. J. These cases present a common question, the 
 power of the city council of the city of Montgomery, to impose a 
 tax on shares of the capital stock of national banks. 
 
 It is not necessary in the view we are constrained to take of 
 these cases, to inquire whether the tax levied and sought to be col- 
 lected by the citv council offends the limitations imposed by the act 
 of Congress. Under the charter of the city, the power to levy taxes 
 is confined to a tax on real estate, personal property, specifically 
 enumerated, certain pursuits, callings, professions or occupations, 
 or business of a particular kind, or the receipts or income from some 
 particular business. There is no general power to impose taxes 
 on personal property, nor any specific power which can be con- 
 strued to authorize the tax of which the appellants complain. In 
 the absence of special constitutional restriction, it is certainly 
 true the legislature may confer on the municipalities it creates, 
 such measure of power to levy and collect taxes as it may deem 
 expedient, not greater or other than it possesses. It is equally 
 certain that this power is capable only of clear and unequivocal 
 delegation. When express power to levy and collect particular taxes
 
 34 NATURE OF POWER TO TAX. 
 
 is conferred, the power to levy and collect other taxes is excluded. 
 Or, if particular subjects of taxation are enumerated, the cor- 
 poration has not capacity to enlarge them. The charter of tho 
 city, limited as it is to taxation of real estate, special occupa- 
 tions or pursuits, enumerated personal property, within no one of 
 which shares in a corporation, or certainly in a bank, whether 
 existing under State or Federal law, can - be embraced, does not 
 authorize the tax, the collection of which is sought to be pro- 
 hibited. '. v ". . 
 
 THE STATE (GEOEGE HANCE, PROSECUTOR) V. 
 SICKLES. 
 
 Court of Error and Appeals of New Jersey, June 1853. 
 4 Zabriskie 125. 
 
 This was a certiorari, directed to the collector of the town of 
 Shrewsbury, in the county of Monmouth, to render into this court 
 the assessment of taxes upon the prosecutor. 
 
 ELMER, J. It appears, by the depositions and exhibits submitted 
 to us, that at the annual town meeting for the township of 
 Shrewsbury, in the county of Monmouth, held on the eleventh 
 day of March, 1851, pursuant to law, the inhabitants voted to raise 
 for roads, the sum of five hundred dollars, for the poor, the 
 sum of five hundred dollars, for schools, "all the law allows," and 
 "ways and means left to the committee." Claiming to act, as it 
 would seem, under the authority of these votes, the township com- 
 mittee, on the fifth of September ensuing, made an order directed 
 to the assessor, and purporting to be signed by a clerk pro tern., in 
 the following words: "You are hereby notified to assess four thou- 
 sand nine hundred dollars to defray current expenses of the town- 
 ship for the present year, for roads, bridges, paupers, public 
 schools and incidentals. N. B. The County and State tax is 
 not included in the above." 
 
 To the sum thus ordered the assessor added the sum of eleven 
 hundred eighty-four dollars, thirty-one cents, being the amount of 
 county tax apportioned to the township, and made out his dupli- 
 cate for the sum of six thousand and sixty dollars, eighty cents. 
 The prosecutor's proportion of this assessment was the sum of one 
 hundred and forty dollars and eighty cents. 
 
 The school money apportioned to the township amounted to 
 four hundred ninety-nine dollars and one cent. Double this
 
 THE STATE V. SICKLES. 35 
 
 sum was all the town meeting was authorized at that time to raise 
 for schools. A resolution to raise "all the law allows" is some- 
 what vague; but, the amount being readily ascertained by the 
 assessor, it would perhaps be too strict to consider it wholly void 
 and inoperative. If the sum thus ordered to be raised for schools 
 be added to the one thousand dollars ordered for the roads and 
 the poor and the county tax, the total amount the assessor was 
 authorized to assess will be the sum of three thousand one hun- 
 dred and eighty-two dollars thirty-two cents and the fees of 
 assessing, collecting and paying the same. The residue was illegal, 
 and, so far as the prosecutor is concerned, must be set aside. It was 
 decided at the last term of this court, in the case of The State 
 v. Bently, that the assessor has no right to add anything for losses 
 or other contingencies. 
 
 As to the order of the township committee, it was wholly 
 illegal, and gave no authority to the assessor to increase the sum 
 voted by the town meeting. The power vested in the inhabitants 
 to order money to be raised by tax, is in itself a delegated power, 
 and cannot be transferred to the town committee or any other 
 officers. By law the committee is empowered to "examine, 
 inspect, and report to the annual, or other town meetings, the 
 accounts and vouchers of the township officers, and to superintend 
 the expenditure of any moneys raised by tax for the use of the 
 township, or which may arise from the balance of the accounts 
 of any of the township officers," (Rev. Stat. 1024), but has 
 no power to order any money to be raised which is not specially 
 voted by the town meeting. The inhabitants composing the town 
 meetings have themselves no general power to vote any money 
 at their discretion, but are confined to raising it for such legal 
 objects as are by law expressly vested in them (Rev. Stat. 1023, 
 sec. 11). A vote, therefore, to raise a specified sum for "ways and 
 means" would be illegal. Much more was it unwarranted to confer 
 a power on the committee to raise for ways and means such sum 
 as they might deem expedient. 
 
 The result, therefore, is that the prosecutor's proportion of the 
 sum assessed, beyond what was authorized by the town meeting and 
 the board of freeholders and the fees of assessing and collecting, 
 must be deducted from his tax, and the residue affirmed. There 
 being no evidence before us showing how much was properly added 
 for fees, a commissioner must be appointed, in pursuance of the 
 practice adopted by the court, to ascertain and report the deduction 
 that ought to be made, upon the nrinciples I have stated.
 
 3(> NATURE OF POWER TO TAX. 
 
 WILLIAM S. HOLT'S APPEAL. 
 
 Supreme Court of Rhode Island. September, 1855. 
 5 Rhode Island 608. 
 
 Appeal from a vote of school district No. 11, of the town 
 of Exeter, authorizing the assessment of a tax. 
 
 From the statement of the school commissioner, presented 
 to the chief justice for his decision, it appeared, that the dis- 
 trict, at a special meeting, held October 9th, 1858, voted to 
 repair their school house, at a cost not to exceed one hundred 
 and fifty dollars, and that the clerk and trustee were appointed a 
 committee to make the repairs; that the repairs were made, and, 
 in addition, the house insured by the trustee, without a vote 
 of the district authorizing the insurance; and that on the 30th 
 day of October, the trustee called a special meeting of the dis- 
 trict, of which the following was the notice: 
 
 "NOTICE. 
 
 "Notice is hereby given, that there will be a meeting of the 
 legal voters of School District No. 11, in the town of Exeter, in 
 the school-house in said district, at two o'clock in the afternoon, 
 on Saturday, the 6th of November, A. D. 1858, for the purpose of 
 laying a tax on the ratable property of the district to meet the 
 expense of repairing the school-house in said district, and of trans- 
 acting any other business which may lawfully come before said 
 meeting. 
 
 (Signed) DAVID NICHOLS, Trustee. 
 
 "Exeter, October 30th, 1858." 
 
 Upon this call, the district meeting was held at the time and 
 place appointed, and voted to receive [repair] the school-house and 
 assess a tax to the amount of one hundred and eighty-six dollars, 
 including, in the amount of tax, the sum paid by the trustee for 
 insurance. 
 
 From this vote, William S. Holt, a tax-payer in said district, 
 appealed to the commissioner, alleging, as reasons, that the 
 original vote limited the tax to a sum not exceeding one hundred 
 and fifty dollars; that the notice of the meeting to assess a tax 
 was illegal, inasmuch as it did not state that a sum greater than 
 one hundred and fifty dollars was necessary to meet the expenses; 
 that the amount of the tax above one hundred and fifty dollars has 
 not been approved by the school committee of the town; that
 
 WILLIAM S. HOLT'S APPEAL. 3V 
 
 one item of this additional expense was incurred by ceiling the 
 walls between the window sills and the floor, which the district 
 voted not to do; that the expense was also increased by the amount 
 paid for insurance; that bills to the amount of one hundred and 
 sixty-seven dollars only were presented at the. meeting, the com- 
 mittee on repairs merely stating, that some of the bills had not 
 been presented; and that the repairs had cost too much. 
 
 AMES, C. J. I am of the opinion that the fair construction 
 of sect. 4 ch. 61, of the Revised Statutes, requires, that the amount 
 of a tax to be levied by a school district on the ratable property 
 within its limits, should be first approved by the school com- 
 mittee of the town. Such approval seems to me to be a condition of 
 the right to raise the tax. 
 
 The power to insure the school-house and its appendages against 
 damage by fire is, by section 3 of the same chapter, reposed in 
 the district, and not in the trustee; and although a legal vote 
 of the district to raise money to pay the premium would be a 
 sufficient ratification of the trustee's act in this respect, the notice 
 of the district meeting, held November 6, 1858, accompanying the 
 statement, and which declares the special purpose of the meeting 
 to be the 'laying of a tax to meet the expenses of repairing the 
 school-house in said district," seems to me not sufficient to justify 
 the meeting in raising, as an addition to the tax, and by way 
 of ratification of the action of the trustee in insuring the school- 
 house, &c., the premium paid by the trustee for the insurance. 
 The notice should, to comply with sect. 5, ch. 62, of the Revised 
 Statutes, state the whole object or purpose of the special meeting. 
 
 The other grounds of the appeal cannot, upon the statement of 
 facts submitted to me, be sustained; but, for the reasons above 
 given, my decision is, that the assessment of the tax by School Dis- 
 trict Xo. 11 of the town of Exeter, at the special meeting held 
 November 6, 1858, is void; and that having first obtained the 
 approbation of the school committee of the town to the amount 
 of the tax, they must, if they would levy it on the ratable property 
 of the district, do so at a meeting, of the purposes of which due 
 notice has been given. This wall not be given, if, when the notice 
 specifies that a tax is intended to be laid for one purpose only, 
 the meeting proceeds to lay a tax for another also.
 
 NATURE OF POWER TO TAX. 
 
 WILLIAMSON V. NEW JERSEY. 
 
 Supreme Court of the United States. October, 1888. 
 130 United States 189. 
 
 Mr. Justice BLATCHFORD delivered the opinion of the court. 
 
 This is a writ of error to the Supreme Court of the State of 
 New Jersey. The case arose on a writ of certiorari issued by 
 that court at the instance of the mayor and common council of 
 the city of New Brunswick, to review an assessment for taxa- 
 tion made by the township of North Brunswick, and a levy made 
 by the collector of that township, against a farm known as the 
 "poor farm/' and personal property thereon, situated in the town- 
 ship of North Brunswick, and owned by the mayor and common 
 council of the city of New Brunswick. 
 
 It was agreed between the attorney for the plaintiff in the 
 certiorari and the attorney for the defendant, that the sole ques- 
 tion to be discussed in the Supreme Court of New Jersey was 
 whether the poor farm, situated in the township of North Bruns- 
 wick, and owned by the city of New Brunswick, was exempt from 
 taxation; and that the poor farm referred to, the buildings thereon 
 and the furniture and fixtures therein, were used exclusively for 
 charitable purposes by the city of New Brunswick, the owner 
 thereof. 
 
 The Supreme Court held, 15 Vroom (44 N. J. Law,) 165, (1) 
 that the declaration in the general law of 1866 that all acts and 
 parts of acts whether special or local or otherwise, inconsistent 
 with its provisions, were repealed, abrogated the provisions in 
 the prior special act of 1862 for the taxation of the poor farm and 
 the personal property thereon by the township of North Brunswick, 
 because such provision in the act of 1862 was inconsistent with the 
 provision of the act of 1866 exempting from taxation all prop- 
 erty of the cities of the state and all property used exclusively 
 for charitable purposes; (2) that the legislature could constitu- 
 tionally repeal the power of taxing the poor farm and the personal 
 property thereon, given by the act of 1862 to the township of North 
 Brunswick. 
 
 The judgment of the Supreme Court was that the assessment of 
 taxes should be set aside. The collector of the township removed
 
 WILLIAMSON V. NEW JERSEY. 39 
 
 the case, by writ of error, to the Court of Errors and Appeals of the 
 State, which affirmed the judgment, in an opinion 17 Vroom, 
 (46 N. J. Law,) 204, adopting the reasons given by the Supreme 
 Court. The case having been remitted to the Supreme Court, the 
 collector has brought it here by a writ of error to that court. 
 
 We concur in the views of the Court of Errors and Appeals of 
 New Jersey on this question 
 
 The true principle involved in the case is, whether the power 
 of taxation on the part of a municipal corporation is private 
 property, or a vested right of property, in its hands, which, when 
 once conferred upon it by an act of the legislature cannot be 
 
 subsequently modified or repealed The question 
 
 arising is, therefore, whether the legislature which passed the act 
 of February 18, 1862, could lawfully so grant the power of taxation 
 to the township in perpetuity, that a subsequent legislature could 
 not repeal or modify such grant of power. 
 
 We are clearly of opinion that such a grant of the power of 
 taxation, by the legislature of a State, does not form such a con- 
 tract between the State and the township as is within the protec- 
 tion of the provision of the Constitution of the United States which 
 forbids the passage by a State of a law impairing the obligation 
 of contracts. The conferring of such right of taxation is an exer- 
 cise by the legislature of a public and governmental power. It is 
 the imparting to the township of a portion of the power belonging 
 to the State, which it can lawfully impart to a subordinate munici- 
 pal corporation. But, from the very character of the power, 
 it cannot be imparted in perpetuity, and is always subject to 
 revocation, modification and control by the legislative authority 
 of the State. The authorities to this effect are uniform. 
 
 In the present case the second section of the act of February 
 18, 1862, has no more force than if the words "at all times here- 
 after" had been omitted; and the section is to be construed as if 
 it only temporarily conferred the right of taxation on the town- 
 ship, subject to be recalled at the pleasure of the legislature. 
 There is no element of private property in the right of taxation 
 conferred upon a municipal corporation. Property acquired by 
 paying for it with money raised by taxation is property. The leg- 
 islation in question does not affect or interfere with any such prop- 
 erty. The poor farm and the personal property thereon are not 
 the property of the township of North Brunswick, but are the
 
 40 NATURE OF POWER TO TAX. 
 
 property of the corporation of the city of New Brunswick. Nor is 
 there anything violative of any provision of the Constitution of 
 the United States in the enactment of the legislature of New 
 Jersey, that the property in question shall he exempt from taxa- 
 tion because it is used exclusively for charitable purposes. The 
 long recognized and universally prevalent policy of making such 
 exemption is a warrant for saying that the 2nd section of the act 
 of February 18, 1862j is fairly to be regarded as containing 
 an implied reservation that such exemption might be thereafter 
 made, as being the exercise of a public and governmental power, 
 resting wholly in the discretion of the legislature, and not the 
 subject of contract. 
 
 Judgment affirmed. 
 
 THE STATE EX REL. A. MARCHAND ET AL. V. THE 
 CITY OF NEW ORLEANS. 
 
 Supreme Court of Louisiana. January, 1885. 
 37 Louisiana Annual 16. 
 
 FENNER, J. In 1872, the legislature of the State passed act 
 No. 60 of that year, by which it established the Luzenberg Hos- 
 pital in this city as the exclusive hospital for small-pox and further- 
 provided that "all indigent oases of small-pox or other diseases 
 reported contagious, in want of or making application for hos- 
 pital aid or care, shall be sent to the hospital designated in 
 this act, at the expense of the city of New Orleans, as usual and 
 at the usual per diem" 
 
 Acting under this direction, the city entered into a contract 
 with Dr. Anfoux then in charge of said hospital by which he was 
 to receive and treat such patients at a stipulated compensation 
 of thirty-five dollars per case. During the 'year 1873 he received 
 and treated a large number of cases, for which the amount due by 
 the city under the contract was $19,670. 
 
 In 1878 suit was brought and judgment recovered against the 
 city on the foregoing cause of action and for the amount above 
 stated, with interest and costs. 
 
 The judgment has not been paid; and the evi- 
 dence makes it manifest that under the cit/s construction of its 
 duties, and under its modes of execution thereof, many years 
 must elapse before any payment will be made upon this judg- 
 ment. 
 
 The reason why this debt remains, and promises to remain,
 
 MARCHAND ET AL. V. NEW OBLEANS. 41 
 
 unpaid, is that the city construes her power and duty of taxation 
 to be governed and limited by the provision of the Consti- 
 tution of 1879 to a tax of ten mills on the dollar, in so far as 
 provision for such judgment is concerned, and that the requirements 
 for her alimony leave, out of the receipts from this tax, nothing or 
 little to be appropriated to the satisfaction of judgments. 
 
 To this the creditor answers that he is a creditor by contract; 
 that, at the date of this contract, the city possessed, by law, a 
 power of taxation for "current city expenses exclusive of interest 
 and schools" only limited to one and one-quarter per cent; that 
 quoad this contract obligation and so far as necessary for its 
 satisfaction, this power of taxation still exists unaffected by sub- 
 sequent legislative or constitutional provisions; that, under the 
 Act No. 5 of 1870, it is the duty of the city authorities to provide 
 for the payment of his registered judgment by setting apart in the 
 annual budget a sum for that purpose, and that, in order 
 to execute this duty, the correlative duty is imposed of exercising 
 the power of taxation vested in the city by law to the extent 
 necessary to raise the means to make such provision. 
 
 In pursuance of these views, the present suit was instituted 
 for a mandamus directing the city authorities to execute and 
 perform the duties imposed by Act No. 5 of 1870; and, in 
 accordance therewith, to set apart in the next annual budget 
 sufficient money to pay such judgment; and further directing them 
 to provide in said budget, by taxation for current city expenses, 
 in excess of the amount allowed by law for the alimony of the 
 city but not in excess of one and one-quarter per cent, the means 
 of revenue necessary to pay relator's said judgment, and so to do, 
 in all succeeding annual budgets, until the same be paid. 
 
 From a judgment making the mandamus preemptory, the cit\ 
 has appealed. 
 
 We lay down the following propositions of fact and law, viz. : 
 
 1st. The judgment was founded on a contract entered into in 
 1872. 
 
 2d. At the date of the contract, the city possessed a power of 
 taxation for general expenses "exclusive of interest and schools," 
 of twelve and one-half mills per annum. See Act No. 73 of 1872, 
 Sec. 15. 
 
 3d. Under the consistent jurisprudence of the Supreme Court 
 of the United States and of this Court, the power of taxation 
 existing at the date of the contract is read into the contract and 
 continues to exist, so far as necessary for the enforcement of the
 
 42 NATURE OF POWER TO TAX. 
 
 obligations of the contract, irrespective of any subsequent legis- 
 lation or constitutional enactments restricting the power of taxa- 
 tion. State ex rel. Moore vs. City, 32 Ann., State ex rel. Dillon 
 vs. City, 34 Ann. 477; State ex rel. Carriere vs. City, 30 Ann.; 
 Von Hoffman vs. Quincy, 4 Wall. 535; Wolf vs. New Orleans, 
 103 U. S. 358; Nelson v. St. Martin, 111 U. S. 720. 
 
 4th. This court has long since held that the prohibitions 
 against the issuance of the writ of mandamus against officers of 
 the city of New Orleans contained in Act No. 5 of 1870, apply 
 only to the cases therein specially designated and that, for the 
 performance of the duties imposed hy that act itself, the writ of 
 mandamus was a proper remedy. State ex rel. Carondelet vs. 
 New Orleans, 30 Ann. 129. 
 
 So far as relator's contract and judgment are concerned, we 
 have already shown that the city possesses a power of taxation for 
 general purposes of twelve and one-half mills. She has, hereto- 
 fore, exercised, and proposes hereafter to exercise this power only 
 to the extent of ten mills on the dollar, and, as the revenues 
 arising from this tax are applicable to, and required for, the neces- 
 sary alimony of the city, they leave, as we have said, little or 
 nothing which can be appropriated for the payment of registered 
 judgments. 
 
 From the foregoing statement, it appears that, to the extent 
 necessary for the provision for payment of plaintiff's judgment, 
 the city possesses a residuary power of taxation of two and one-half 
 mills, not exercised and which she refuses to .exercise, the reve- 
 nues from which would, under no circumstances, be applicable 
 to the city's alimony, or, indeed, to any other purpose than thaf 
 of satisfying relator's judgment and others standing in like case 
 with it. It would be, indeed, an anomaly, if the city could escape 
 from or postpone her clear duty, to provide for the satisfaction of 
 such judgments, by simply abstaining from the exercise of lawful 
 powers of taxation to an extent necessary to provide the means 
 of paying them. Such an anomaly could never be sanctioned by 
 any court of justice, since it would render the payment of debts 
 no longer obligatory upon municipal corporations, but dependent 
 purely upon their will and caprice. 
 
 From the foregoing considerations it would conclusively appear 
 that relators are entitled to the relief which they seek, unless 
 there is something in the nature of their debt, or in the law 
 existing at the date of their contract, which debars it. Legislation
 
 CHRIST CHURCH V. PHILADELPHIA. 43 
 
 subsequent to the contract has, and can have no effect upon the 
 rights and obligations arising from the contract. 
 
 Let it be well understood that the duty to levy an extra 
 tax is not obligatory under this decree. The city may satisfy 
 the debt out of its revenues under the existing rate of taxation. 
 But the insufficiency of such revenues will be no excuse for not 
 satisfying the judgment and, if necessary, and only if necessary, 
 must provision be made by a tax for general expenses above ten 
 mills and within twelve and one-half mills. 
 
 Judgment affirmed. 
 
 Rehearing refused. 
 
 BERMUDEZ, C. J., and POCHE, J., take no part in this opinion 
 and decree. 
 
 III. ALIENATION or THE TAXING POWER. 
 1. Statutory Exemptions From Taxation. 
 
 RECTOR &c. OF CHRIST CHURCH V. COUNTY OF PHILA- 
 DELPHIA. 
 
 Supreme Court of the United States. December, 1860. 
 24 Howard 300. 
 
 Mr. Justice CAMPBELL delivered the opinion of the court. 
 
 This cause comes before this court on a writ of error to the 
 Supreme Court of Pennsylvania, under the 25th section of the 
 act of Congress of the 24th of September, 1789. In the year 
 1833 the Legislature of Pennsylvania passed an act which recited 
 "that Christ Church Hospital, in the city of Philadelphia, had 
 for many years afforded an asylum to numerous poor and dis- 
 tressed widows, who would probably else have become a public 
 charge; and it being represented that in consequence of the 
 decay of the buildings of the hospital estate, and the increasing 
 burden of taxes, its means are curtailed and its usefulness lim- 
 ited," they enacted, "that the real property, including ground rents, 
 now belonging and payable to Christ Church Hospital, in the 
 city of Philadelphia, so long as the same shall continue to belong 
 to the said hospital, shall be and remain free from taxes." 
 
 In the year 1851 the same authority enacted "that all property 
 real and personal, belonging to any association or incorporated com- 
 pany which is now by law exempt from taxation, other than that
 
 44 NATURE OF POWER TO TAX. 
 
 which is in the actual use and occupation of such association or 
 incorporated company, and from which an income or revenue is 
 derived by the owners thereof, shall hereafter he subject to taxation 
 in the same manner and for the same purposes as other property 
 is now by law taxable, and so much of any law as is hereby altered 
 and supplied be and the same is hereby repealed.'' It was decided 
 in the Supreme Court of Pennsylvania, that the exemption con- 
 ferred on these plaintiffs by the act of 1833 was partially repealed by 
 the act of 1851, and that an assessment of a portion of their 
 real property under the act of 1851 was not repugnant to the 
 Constitution of the United States, as tending to impair a legislative 
 contract alleged to be contained in the act of Assembly of 1833 
 aforesaid. 
 
 The plaintiffs, claim . that the exemption conceded by the act 
 of 1833 is perpetual, and that the act itself is in effect a contract. 
 This concession of the Legislature was spontaneous, and no 
 service or duty or other remunerative condition, was imposed on 
 the corporation. It belongs to the class of laws denominated 
 privileged favordbilia. It attached only to such real property as 
 belonged to the corporation, and while it remained as its property; 
 but it is not a necessary implication from these facts that the 
 concession is perpetual, or was designed to continue during the 
 corporate existence. 
 
 Such an interpretation is not to be favored, as the power 
 of taxation is necessary to the existence of the State, and must be 
 exerted according to the varying conditions of the Commonwealth. 
 The act of 1833 belongs to a class of statutes in which the narrowest 
 meaning is to be taken which will fairly carry out the intent of the 
 Legislature. All laws, all political institutions, are dispositions 
 for the future, and their professed object is to afford a steady 
 and permanent security to the interests of society. Bentham 
 says, "that all laws may be said to be framed with a view to per- 
 petuity; but perpetual is not synonomous to irrevocable; and the 
 principle upon which all laws ought to be, and the greater part of 
 them have been established, is that of defeasible perpetuity a per- 
 petuity defeasible by an alteration of the circumstances and reasons 
 on which the law is founded." The inducements that moved the 
 Legislature to concede the favor contained in the act of 1833 
 are special, and were probably temporary in their operation. The 
 usefulness of the corporation had been curtailed in consequence of 
 the decay of their buildings and the burden of taxes. 
 
 It may be supposed that in eighteen years the buildings would be
 
 STATE OF NEW JEKSEY V. WILSON. 45 
 
 renovated, and that the corporation would be able afterwards 
 to sustain some share of the taxation of the State. The act of 
 1851 embodies the sense of the Legislature to this effect. 
 
 It is in the nature of such a privilege as the act of 1833 con- 
 fers, that it exists bene placitum., and may be revoked at the 
 pleasure of the sovereign. 
 
 Such was the conclusion of the courts in Commonwealth v. 
 Bird, 12 Mass. 442; Dale v. Governor, 3 Stew. 387; Alexander v. 
 Willington, 2 Russ. & M. 35; 12 Harris 232; Lindley's Jurisp., 
 sec. 42. 
 
 It is the opinion of the court that there is no error in the judg- 
 ment of the Supreme Court, within the scope of the writ to that 
 court, and its judgment is affirmed. 
 
 STATE OF NEW JERSEY V. WILSON. 
 
 Supreme Court of the United States. February, 1812. 
 7 C ranch 164. 
 
 MARSHALL, Ch. Justice, delivered the opinion of the court. 
 
 This is a writ of error to a judgment rendered in the Court of 
 last resort in the State of New Jersey, by which the Plaintiffs allege 
 they are deprived of a right secured to them by the constitution of 
 the United States. 
 
 The case appears to be this. 
 
 The remnant of the tribe of Delaware Indians, previous to the 
 20th of February, 1758, had claims to a considerable portion 
 of lands in New Jersey, to extinguish which became an object with 
 the government and proprietors under the conveyance from King 
 Charles II., to the Duke of York. For this purpose a conven- 
 tion was held in February, 1758, between the Indians and com- 
 missioners appointed by the government of New Jersey; at which 
 the Indians agreed to specify particularly the lands which they 
 claimed; release their claim to all others; and to appoint certain 
 chiefs to treat with commissioners on the part of the government 
 for the final extinguishment of their whole claim. 
 
 On the 9th of August, 1758, the Indian deputies met the com- 
 missioners and delivered to them a proposition reduced to writing 
 the basis of which was, that the government should purchase a tract 
 of land on which they might reside in consideration of which
 
 46 NATURE OF POWER TO TAX. 
 
 they would release their claim to all other lands in New Jersey 
 south of the river Rariton. 
 
 This proposition appears to have been assented to by the 
 commissioners; and the Legislature on the 12th of August, 1758, 
 passed an act to give effect to this agreement. 
 
 This act, among other provisions, authorizes the purchase oi' 
 lands for the Indians, restrains them from granting leases or mak- 
 ing sales, and enacts "that the lands to be purchased for the 
 Indians aforesaid shall not hereafter be subject to any tax, any law, 
 usage or custom to the contrary thereof, in any wise notwith- 
 standing." 
 
 In virtue of this act, the convention with the Indians was 
 executed. Lands were purchased and conveyed to trustees for 
 their use, and the Indians released their claim to the south part 
 of New Jersey. 
 
 The Indians continued in peaceable possession of the lands 
 thus conveyed to them until some time in the year 1801, when, 
 having become desirous of migrating from the State of New 
 Jersey, and of joining their brethren at Stockbridge, in the State 
 of New York, they applied for, and obtained an act of the Leg- 
 islature of New Jersey, authorizing a sale of their land in that 
 State. 
 
 This act contains no expression in any manner respecting the 
 privilege of exemption from taxation which was annexed to those 
 lands by the act, under which they were purchased and settled on 
 the Indians. 
 
 In 1803, the commissioners under the last recited act sold 
 and conveyed the lands to the Plaintiffs, George Painter and 
 others. 
 
 In October, 1804, the Legislature passed an act repealing that 
 section of the act of August, 1758, which exempts the lands therein 
 mentioned from taxation. The lands were then assessed, and the 
 taxes demanded. The Plaintiffs thinking themselves injured by this 
 assessment, brought the case before the Courts in the manner 
 prescribed by the laws of New Jersey, and in the highest Court 
 of the State, the validity of the repealing act was affirmed and 
 the land declared liable to taxation. The cause is brought into 
 this Court by writ of error, and the question here to be decided is, 
 does the act of 1804 violate the Constitution of the United States? 
 
 The Constitution of the United States declares that no State shall 
 "pass any bill of attainder, ex post facto law, or law impairing the 
 obligation of contracts."
 
 STATE OF XEW JERSEY V. WILSON. 47 
 
 In the case of Fletcher v. Peck, it was decided in this Court on 
 solemn argument and much deliberation, that this provision of 
 the Constitution extends to contracts to which a State is party, 
 as well as to contracts between individuals. The question then 
 is narrowed to the enquiry whether in the case stated, a contract 
 existed and whether that contract is violated by the act of 1804. 
 
 Every requisite to the formation of a contract is found in the 
 proceedings between the then colony of New Jersey and the 
 Indians. The subject was a purchase on the part of the gov- 
 ernment of extensive claims of the Indians, the extinguishment 
 of which would quiet the title to a large portion of the province. 
 A proposition to this effect is made, the terms stipulated, the con- 
 sideration agreed upon, which is a tract of land with the privilege 
 of exemption from taxation; and then in consideration of the 
 arrangement previously made, one of which this act of assembly 
 is stated to be, the Indians execute their deed of cession. This 
 is certainly a contract clothed in forms of unusual solemnity. The 
 privilege, though for the benefit of the Indians, is annexed, by 
 the terms which create it, to the land itself, not to their persons. 
 It is for their advantage that it should be annexed to the land, be- 
 cause, in the event of a sale, on which alone the question could be- 
 come material, the value would be enhanced by it. 
 
 It is not doubted but that the State of New Jersey might have 
 insisted on a surrender of this privilege as the sole condition 
 on which the sale of the property should be allowed. But this 
 condition has not been insisted on. The land has been sold, with 
 the assent of the State, with all its privileges and immunities. 
 The purchaser succeeds, with the assent of the State, to all right- 
 of the Indians. He stands, with respect to this land, in their place 
 and claims the benefit of their contract. This contract is cer- 
 tainly impaired by a law which would annul this essential part of it. 
 
 It is therefore considered by the Court, that the said judgment 
 be reversed and annulled, and that the cause be remanded to the 
 said Court of Errors, that judgment may be rendered therein 
 annulling the assessment in the proceedings mentioned, so far as 
 the same may respect the land in the said proceedings also 
 mentioned.
 
 48 tfATURE OF POWER TO TAX. 
 
 / 
 
 2. Exemptions Contained in Charters. 
 HOME OF THE FRIENDLESS V. ROUSE. 
 
 Supreme Court of the United States. December, 1869. 
 8 Wallace 30. 
 
 Error to the Supreme Court of Missouri. 
 
 On the 3d of February, 1853, the Legislature of Missouri 
 
 passed "an act to incorporate the Home of the Friendless, in 
 the city of St. Louis." 
 
 The corporation was organized and set in action, and by gifts, 
 grants, and devises, had acquired a considerable amount of real 
 estate in St. Louis. A constitution adopted by the State in the 
 year 1865, authorized the Legislature to impose certain taxes, 
 and soon after, the Legislature did impose a tax upon the real 
 property of the Home. The corporation declining to pay, the 
 collector of taxes for the county was about to levy on and sell it? 
 real estate, when the corporation filed a bill in one of the State 
 courts, praying for an injunction against collecting the taxes, on 
 the ground that they were illegally assessed, all property of the 
 Home being, by its act of incorporation, expressly exempted from 
 taxation at all times. The defendant interposed a demurrer, which 
 was overruled, and the judgment on the demurrer made final. The 
 cause was removed to the Supreme Court of the State, and resulted 
 in the reversal of the judgment of the lower court, and the dis- 
 missal of the bill or petition. 
 
 Mr. Justice DAVIS delivered the opinion of the court. 
 
 The object for which the Home of the Friendless was incor- 
 porated was to enable those persons of the female sex, who were 
 desirous of establishing a charitable institution in St. Louis 
 for the relief of destitute and suffering females, to carry out their 
 laudable undertaking. 
 
 It can readily be seen that a charity of this kind would be of 
 great benefit to the people of St. Louis, and that the Legislature 
 of the State would naturally be desirous of using all proper means 
 to promote it. The purposes to be attained by such a charity are 
 usually beyond the ability of individual effort, and require an 
 association of persons who will themselves contribute pecuniary 
 aid, and are willing to become solicitors for the contributions of 
 others. Usually the initiation of such an enterprise is in the
 
 HOME OF FRIENDLESS V. ROUSE. 49 
 
 hands of a few persons who need to be clothed with more than 
 ordinary powers in order to obtain the successful co-operation of 
 others. In no way could this co-operation be better secured than 
 by conferring upon the corporators the authority to say to the 
 benevolent people of St. Louis, that their donations in money or 
 lands, for the relief of the suffering female poor of the city, 
 would be held by the institution undiminished by taxation. 
 
 It was doubtless under the influence of these considerations, and 
 because every government wishes to encourage benevolent enter- 
 prises, that the Legislature granted the charter for the Home of 
 the Friendless, and said to the charitable persons engaged in this 
 business, that if they would organize the society and conduct its 
 affairs, would give themselves and solicit others to give for the 
 common purpose, "that the property of the corporation shall be 
 exempt from taxation." This charter is a contract between 
 the State of Missouri and the corporators that the property given 
 for the charitable uses specified in it, shall, so long as it is applied 
 to these uses, be exempted from taxation. It follows, that any 
 attempt to tax it impairs the obligation of the contract 
 
 It is objected that there is no consideration stated in the act 
 for the release from taxation, which it is claimed is necessary in 
 order to uphold the contract. But this is a mistaken view of the 
 law on this subject. 
 
 There is no necessity of looking for the consideration for a legis- 
 lative contract outside of the objects for which the corporation was 
 created. These objects were deemed by the Legislature to be bene- 
 ficial to the community, and this benefit constitutes the considera- 
 tion for the contract, and no other is required to support it. This 
 has been the well-settled doctrine of this court on this subject since 
 the case of Dartmouth College v. Woodward. 
 
 It is contended that the rules of construction applicable to legis- 
 lative contracts are more stringent than those which are applied to 
 contracts between natural persons, and that, applying these rules to 
 tin's contract, it cannot be sustained as a perpetual exemption from 
 taxation. 
 
 It is true that legislative contracts are to be construed most 
 favorably to the State if on a fair consideration to be given the 
 charter, any reasonable doubts arise as to their proper interpreta- 
 tion; but, as every contract is to be construed to accomplish the 
 intention of the parties to it, if there is no ambiguity about it, and 
 this intention clearly appears on reading the instrument, it is as 
 much the dutv of the court to uphold and sustain it, as if it were 
 4
 
 60 NATURE OF POWER TO TAX. 
 
 a contract between private persons. Testing the contract in ques- 
 tion by these rules, there does not seem to be any rational doubt 
 about its true meaning. "All property of said corporation shall be 
 exempt from taxation," are the words used in the act of incorpora- 
 tion, and there is no need of supplying any words to ascertain the 
 legislative intention. To add the word "forever" after the word 
 "taxation" could not make the meaning any clearer. 
 
 It was undoubtedly the purpose of the Legislature to grant to the 
 corporation a valuable franchise, and it is easy to see that the 
 franchise would be comparatively of little value if the Legislature, 
 without taking direct action on the subject, could at its will, re- 
 sume the power of taxation. This view is fortified by the pro- 
 visions of the general law of the State regarding corporations, in 
 force at the time this charter was granted, and which the Legislature 
 declared should not apply to this corporation. The seventh section 
 of the act concerning corporations, approved March 19, 1845, pro- 
 vided that "the charter of every corporation that shall hereafter 
 be granted by the Legislature shall be subject to alteration, sus- 
 pension and repeal, in the discretion of the Legislature." As the 
 charter in controversy was granted in 1853, it would have been 
 subject to this general law if the Legislature had not, in express 
 terms, withdrawn from it this discretionary authority. Why the 
 necessity of doing this if the exemption from taxation was only 
 understood to continue at the pleasure of the Legislature? 
 
 The validity of this contract is questioned at the bar on the 
 ground that the Legislature had no authority to grant away the 
 power of taxation. The answer to this position is, that the question 
 is no longer open for argument here, for it is settled by the re- 
 peated adjudications of this court, that a State may, by a contract 
 based on a consideration, exempt the property of an individual or 
 corporation from taxation, either for a specified period, or perma- 
 nently. And it is equally well settled that the exemption is pre- 
 sumed to be on sufficient consideration, and binds the State if the 
 charter containing it is accepted.* 
 
 It is proper to say that the present Constitution of Missouri pro- 
 hibits the Legislature from entering into a contract which exempts 
 the property of an individual or corporation from taxation, but 
 
 *Ncw Jersey v. Wilson, 7 Cranch 164; Gordon v. Tax Appeal Court, 3 
 Howard 133 ; Piqua Bank v. Knoop, 16 Id. 369 ; Ohio Life and Trust Company, 
 v. Debolt, 16 Id. 416; Dodge v. Wilson, 18 Id. 331; Mechanics' & Traders' 
 Bank v. Thomas, Ib. 384; Mechanics' & Traders' Bank v. Debolt, Ib. 380; 
 McGcc v. Mathis, 4 Wallace 143,
 
 COVIXGTOX V. KENTUCKY. 51 
 
 when the charter in question was passed there was no constitutional 
 restraint on the action of the Legislature in this regard. 
 
 Without pursuing the subject further, we are of the opinion that 
 the State of Missouri did make a contract on sufficient considera- 
 tion with the Home of the Friendless, to exempt the property of 
 the corporation from taxation, and that the attempt made on 
 behalf of the State through its authorized agent, notwithstanding 
 this agreement to compel it to pay taxes, is an indirect mode of 
 impairing the obligation of the contract, and cannot be allowed. 
 
 JUDGMENT KEVERSED, and the cause remanded to the court 
 below, with directions to proceed 
 
 IX CONFORMITY WITH THIS OPINION. 
 
 The CHIEF JUSTICE, with MILLER and FIELD, JJ., dissented. 
 
 COVIXGTOX V. KENTUCKY. 
 
 Supreme Court of the United States. October, 1898. 
 173 United States, 231. 
 
 Mr. Justice HARLAN delivered the opinion of the court. 
 
 The plaintiff in error, a municipal corporation of Kentucky, 
 insists that by the final judgment of the Court of Appeals of that 
 Commonwealth sustaining the validity of certain taxation of its 
 waterworks property,. it has been deprived of rights secured by that 
 clause in the Constitution of the United States which prohibits any 
 State from passing a law impairing the obligation of contracts. 
 That is the only question which this court has jurisdiction to deter- 
 mine upon this writ of error. Rev. Stat. 709. 
 
 By an Act of the General Assembly of Kentucky, approved May 
 1. 188ti, the city of Covington was authorized to build a water 
 reservoir or reservoirs within or outside its corporate limits, either 
 in the county of Kenton or in any county adjacent thereto, and 
 acquire by purchase or condemnation in fee simple the lands neces- 
 sary for such reservoirs, and connect the same with the water-pipe 
 system then existing in the city; to build a pumping house near 
 or adjacent to the Ohio river, and provide the same with all neces- 
 sary machinery and appliances, together with such lands as might 
 be needed for the pumping house, and for connecting it with said 
 or reservoirs. 21. 
 
 By Section 31 of that act it was provided that "said reservoir
 
 52 NATURE OF POWER TO TAX. 
 
 or reservoirs, machinery, pipes, mains and appurtances, with the 
 land upon which they are situated, shall be and remain forever 
 exempt from state, county and city tax." Ky. Acts, 1885-6, c. 
 897, p. 317. 
 
 , . 4 
 
 By the Kentucky Statutes of 1894, it is provided: 
 " 4020. All real and personal estate within this State, and 
 all personal estate of persons residing in this State, and of all cor- 
 porations organized under the laws of this State, whether the 
 property be in or out of this State, including intangible property, 
 which shall be considered and estimated in fixing the value of cor- 
 porate franchises as hereinafter provided shall be subject to taxa- 
 tion, unless the same be exempt from taxation by the Constitution, 
 and shall be assessed at its fair cash value, estimated at the price 
 it would bring at a fair voluntary sale." 
 
 This act repealed all acts and parts of acts in conflict with its 
 provisions, except the act of June 4, 1892, providing additional 
 funds for the ordinary expenses of the State government, and the 
 act amendatory thereof approved July 6, 1892. 
 
 In the year 1895, certain lands acquired under the above act 
 of May 1, 1886, and constituting a part of the Covington Water 
 Works, were assessed for State and county taxation, pursuant to 
 the statutes enacted after the passage of that act, and conformably 
 ab well to the Constitution of Kentucky if that instrument did not 
 exempt them from taxation. The taxes so assessed not having 
 been paid, those lands after due notice were sold at public outcry 
 by the sheriff, (who by law was the collector of State and county 
 revenue,) and no other bidder appearing, the Commonwealth of 
 Kentucky purchased them for $2,187.24, the amount of the taxes, 
 penalty, commission and cost of advertising. 
 
 The present action was brought by the Commonwealth to recover 
 possession of the property so purchased. 
 
 The principal defense is that the provision in the act of May 1, 
 1886, that the reservoir or reservoirs, pumping house, machinery, 
 pipes, mains and appurtenances, with the land upon which they 
 are situated, "shall be and remain forever exempt from state, 
 county and city taxes," constituted, in respect of the lands in 
 question, a contract between the city of Covington and the Com- 
 monwealth of Kentucky, the obligation of which was impaired by 
 the subsequent legislation to which reference has been made. 
 
 Referring to Section 170 of the present Constitution of Kentucky
 
 COVIXCVTON V. KENTUCKY. 53 
 
 declaring that <c there shall be exempt from taxation public property 
 used for public purposes," the Court of Appeals of Kentucky, in 
 this case, said: " In our opinion, the prop- 
 erty in question is, under the Constitution, subject to taxation, and 
 the statute enacted in pursuance of it operated to repeal the special 
 act of May 1, 1886." 
 
 However much we may doubt the soundness of any interpretation 
 of the State Constitution implying that lands and buildings are not 
 public property used for public purposes when owned and used 
 under legislative authority by a municipal corporation, one of the 
 instrumentalities or agencies of the State, for the purpose, and 
 only for the purpose, of supplying that corporation and its people 
 with water, and when the net revenue from such property must be 
 applied in the improvement of public ways, we must assume, in 
 conformity with the judgment of the highest court of Kentucky, 
 that Section 170 of the Constitution of that Commonwealth cannot 
 be construed as exempting the lands in question from taxation. . 
 
 The fundamental question in the case then is whether at the 
 time of the adoption of that Constitution the city of Covington 
 had in respect of the lands in question, any contract with the 
 State, the obligation of which could not be impaired by any subse- 
 quent statute or by the present Constitution of Kentucky, adopted 
 in 1891. If the exemption found in the act of 1886 was such a 
 contract, then it could not be affected by that Constitution any 
 more than by a legislative enactment. 
 
 We are of opinion that the exemption from taxation embodied 
 in that act did not tie the hands of the Commonwealth of Ken- 
 tucky so that it could not, by legislation, withdraw such exemption 
 and subject the property in question to taxation. The act of 1886 
 was passed subject to the provision in a general statute of Ken- 
 tucky, above referred to, that all statutes "shall be subject to 
 amendment or repeal at the will of the Legislature, unless a con- 
 trary intent be therein plainly expressed." If that act in any 
 sense constituted a contract between the city and the Common- 
 wealth, the reservation in an existing general statute of the right 
 to amend or repeal it was itself a part of that contract. 
 
 If, however, the property in question lie regarded as in some 
 >cnse held by the city in its governmental or public character, and 
 therefore as public property devoted to public purposes which is 
 the interpretation of the State Constitution for which the city con-
 
 54 NATURE OF POWER TO TAX. 
 
 tends there would still be no ground for holding that the city 
 had in the Act of 1886 a contract within the meaning of the Con- 
 stitution of the United States. A municipal corporation is a public 
 instrumentality established to aid in the administration of the 
 affairs of the State. Neither its charter nor any legislative act 
 regulating the use of property held by it for governmental or 
 public purposes, is a contract within the meaning of the Constitu- 
 tion of the United States. If the Legislature chooses to subject to 
 taxation public property held by a municipal corporation of the 
 State for public purposes, the validity of such legislation, so far as 
 the national Constitution is concerned, could not be questioned. 
 
 In New Orleans v. New Orleans Water Works Co., 142 U. S. 
 79, 91, after referring to previous adjudications, this court said 
 that the authorities were full and conclusive to the point that a 
 municipal corporation, being a mere agent of the State, "stands 
 in its governmental or public character in no contract relations with 
 its sovereign, at whose pleasure its charter may be amended, changed 
 or revoked, without the impairment of any constitutional obligation, 
 while with respect to its private or proprietary rights and interests 
 it may be entitled to the constitutional protection/' Chancellor 
 Kent, in his Commentaries says : "In respect to public or munici- 
 pal corporations, which exist only for public purposes, as counties, 
 cities and towns, the legislature, under proper limitations, has a 
 right to change, modify, enlarge, restrain or destroy them; securing, 
 however, the property for the uses of those for whom it was pur- 
 chased. A public corporation, instituted for purposes connected 
 with the administration of the government, may be controlled by 
 the legislature, because such a corporation is not a contract within 
 the purview of the Constitution of the United States. In those 
 public corporations there is, in reality, but one party, and the trus- 
 tees or governors of the corporation are merely trustees for the 
 public." 2 Kent's Com., 12th ed, p. *306. Dillon says: "Public, 
 including municipal, corporations are called into being at the pleas- 
 ure of the State, and while the State may, and in the case of 
 municipal corporations usually does, it need not, obtain the consent 
 of the people of the locality to be affected. The charter or incor- 
 porating act of a municipal corporation is in no sense a contract 
 between the State and the corporation, although, as we shall pres- 
 ently see, vested rights in favor of third persons, if not indeed in 
 favor of the corporation or rather the community which is incor- 
 porated, may arise under it. Public corporations within the mean- 
 ing of this rule are such as are established for public purposes
 
 COVINGTON V. KENTUCKY. 55 
 
 exclusively that is, for purposes connected with the administration 
 of civil or of local government and corporations are public only 
 when, in the language of Chief Justice Marshall, 'the whole inter- 
 ests and franchises are the exclusive property and domain of the 
 government itself,' such as quasi corporations (so-called), coun- 
 ties and towns or cities upon which are conferred the powers of 
 local administration. Subject to constitutional limitations pres- 
 ently to be noticed, the power of the legislature over such corpora- 
 tions is supreme and transcendent; it may, where there is no con- 
 stitutional inhibition, erect, change, divide and even abolish them 
 at pleasure, as it deems the public good to require." 1 Dillon's 
 Mimic. Cor. 4th ed. p. 93, 54. 
 
 In any view of the case there is no escape from the conclusion 
 that the city of Covington has no contract with the State exempting 
 the property in question from taxation which is protected by the 
 contract clause of the National Constitution. 
 
 Perceiving no error in the record of which this court may talci 
 cognizance the judgment is affirmed. 
 
 As to power to make exemptions see Chapter VI. Equality and Uniformity 
 in Taxation. 
 
 in
 
 CHAPTER III. 
 
 LIMITATIONS OF THE TAXING POWER BY PARA- 
 MOUNT LAW. 
 
 I. EFFECT OF THEORY OF FEDERAL GOVERNMENT. 
 
 1. General Principles. 
 M'CULLOCH V. THE STATE OF MARYLAND. 
 
 Supreme Court of the United States. February, 1819. 
 4 Wheaton, 31 G. 
 
 Error to the Court of Appeals of the State of Maryland. 
 
 This was an action of debt brought by the defendant in error, 
 John James, who sued as well for himself as for the State of 
 Maryland, in the County Court of Baltimore County, in said State, 
 against the plaintiff in error, M'Culloch, to recover certain penalties 
 under the act of the legislature of Maryland, hereafter mentioned. 
 Judgment being rendered against the plaintiff in error, upon the 
 following statement of facts, agreed and submitted to the Court 
 by the parties, was affirmed by the Court of Appeals of the State 
 of Maryland, the highest Court of law of said State, and the cause 
 was brought, by writ of error, to this Court 
 
 It is admitted by the parties in this cause, by their counsel, that 
 there was passed on the 10th day of April, 1816, by the. Congress 
 of .the United States, an act, entitled, "an act to incorporate the 
 subscribers to the Bank of the United States;" and that there was 
 passed, on the llth day of February, 1818, by the General Assem- 
 bly of Maryland, an act, entitled, "an act to impose a tax on all 
 Banks, or branches thereof, in the State of Maryland, not chartered 
 by the legislature." 
 
 Mr. Chief Justice MARSHALL delivered the opinion of the Court. 
 
 It being the opinion of the Court, that the act incorporating 
 the bank is constitutional; and that the power of establishing a 
 branch in the State of Maryland might be properly exercised by 
 the bank itself, we proceed to inquire: 
 
 56
 
 M'CULLUCH V. STATE OF MARYLAND. 57 
 
 2. \Vhetlier the State of Maryland may, without violating the 
 Constitution, tax that branch? 
 
 That the power of taxation is one of vital imoortance; 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 con- 
 currently exercised by the two governments; are truths which have 
 never been denied. But, such is the paramount character of the 
 constitution, that its capacity to withdraw any subject from the 
 action of even this power, is admitted 
 
 On this ground the counsel for the bank place its claim to be 
 exempted from the power of a State to tax its operations. There 
 is no express provision for the case; but the claim has been sus- 
 tained on a principle which so entirely pervades the constitution, 
 is so intermixed with the materials which compose it, so interwoven 
 with its web, so blended with its texture, as to be incapable of 
 being separated from it, without rending it into shreds. 
 
 This great principle is, that the constitution and the laws made 
 in pursuance thereof are supreme; that they control the consti- 
 tutions and laws of the respective States, and cannot be controlled 
 by them. From this, which may be almost termed an axiom, other 
 propositions are deduced as corollaries, on the truth or error of 
 which, and on their application to this case, the cause has been 
 supposed to depend. These are, 1st, that a power to create implies 
 a power to preserve. 2nd. That a power to destroy, if wielded by 
 a different hand, is hostile to, and incompatible with these powers 
 to create and preserve. 3d. That where this repugnancy exists, 
 that authority which is supreme must control, not yield to that 
 over which it is supreme. 
 
 * 
 
 The power of Congress to create, and, of course, to continue, 
 the bank, was the subject of the preceding part of this opinion; 
 and is no longer to be considered as questionable. 
 
 That the power of taxing it by the States may be exercised so as 
 to destroy it, is too obvious to be denied. But taxation is said to 
 be an absolute power, which acknowledges no other limits than 
 those expressly prescribed in the constitution, and like sovereign 
 power of every other description, is trusted to the discretion of 
 those who use it. But the very terms of this argument admit that 
 the sovereignty of the State, in the article of taxation itself, is 
 subordinate to, and may be controlled by the constitution of the 
 United States. How far it has been controlled by that instrument 
 must be a question of construction. In making this construction,
 
 58 LIMITATIONS OF THE TAXING POWEB. 
 
 no principle not declared, can be admissable, which would defeat 
 the legitimate operations of a supreme government. It is of the 
 very essence of supremacy to remove all obstacles to its action 
 within its own sphere, and so to modify every power vested in 
 subordinate governments, as to exempt its own operations from 
 their own influence. This effect need not be stated in terms. 
 It is so involved in the declaration of supremacy, so necessarily 
 implied in it, that the expression of it could not make it more 
 certain. We must, therefore, keep it in view while construing the 
 
 constitution It is admitted that the power of 
 
 taxing the people and their property is essential to the very exist- 
 ence of government, and may be legitimately exercised on the objects 
 to which it is applicable, to the utmost extent to which the govern- 
 ment may chuse 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 exigen- 
 cies of government cannot be limited, they prescribe no limits to 
 the exercise of this right, resting confidently on the interest of the 
 legislator, and on the influence of the constituents over their rep- 
 resentatives, to guard them against its abuse. But the means em- 
 ployed by the government of the Union have no such security, nor 
 is the right of a State to tax them sustained by the same theory. 
 Those means are not given by the people of a particular State, not 
 given by the constituents of the legislature, which claim the right to 
 tax them, but by the people of all the States. They are given by 
 all, for the benefit of all and upon theory, should be subjected 
 to that government only which belongs to all. 
 
 It may be objected to this definition, that the power of taxa- 
 tion is not confined to the people and property of a State. It may 
 be exercised on every object brought within its jurisdiction. 
 
 This is true. But to what source do we trace this right? It is 
 obvious, that it is an incident of sovereignty, and is co-extensive 
 with that to which it is an incident. All 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 prin- 
 ciples, exempt from taxation. This proposition may almost be 
 pronounced self-evident. 
 
 The sovereignty of a State extends to everything which exists
 
 M'CULLOCH V. STATE OF MARYLAND. 59 
 
 by its own 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? We think it demonstrable that it does not. 
 Those powers are not given by the people of a single State. They 
 are given by the people of the United States, to a government 
 whose laws, made in pursuance of the constitution, are declared to 
 be supreme. Consequently, the people of a single State cannot 
 confer a sovereignty which will extend over them. 
 
 We find, then, on just theory, a total failure of this original 
 right to tax the means employed by the government of the Union, 
 for the execution of its powers. The right never existed, and the 
 question whether it has been surrendered, cannot arise. 
 
 But, waiving this theory for the present, let us resume the 
 inquiry, whether this power can be exercised by the respective 
 States, consistently with a fair construction of the constitution? 
 
 That the power to tax involves the power to destroy; that the 
 power to destroy may defeat and render useless the power to create; 
 that there is a plain repugnance, in conferring on one govern- 
 ment a power to control the constitutional measures of another, 
 which other, with respect to those very measures, is declared to be 
 supreme over that which exerts the control, are propositions not to 
 be denied. But all inconsistencies are to be reconciled by the magic 
 of the word CONFIDENCE. Taxation, it is said, does not neces- 
 sarily and unavoidably destroy. To carry it to the excess of 
 destruction would be an abuse, to presume which, would banish that 
 confidence which is essential to all government. 
 
 If we apply the principle for which the State of Maryland con- 
 tends, to the constitution generally, we shall find it capable of 
 changing totally the character of that instrument. We shall find 
 it capable of arresting all the measures of the government, and of 
 prostrating it at the foot of the States. The American people 
 have declared their constitution, and the laws made in pursuance 
 thereof, to be supreme; but this principle would transfer the 
 supremacy, in fact, to the States. 
 
 If the States may tax one instrument, employed by the govern- 
 ment in the execution of its powers, they may tax any and every 
 other instrument They may tax the mail; they may tax the 
 mint; they may tax patent rights; they may tax the papers of the 
 custom-house; they may tax judicial process; they may tax all
 
 60 ' LIMITATIONS OF THE TAXING POWER. 
 
 the means employed by the government, to an excess which would 
 defeat all the ends of government. This was not intended by the 
 American people. Thev did not design to make their government 
 dependent on the States. 
 
 The court has bestowed on this subject its most deliberate con- 
 sideration. The result is a conviction that the States have no 
 power, by taxation or otherwise, to retard, impede, burden, or in 
 any manner control, the operations of the constitutional laws 
 enacted by Congress to carry into execution the powers vested in 
 the general government. This is, we think, the unavoidable conse- 
 quence of that supremacy which the constitution has declared. 
 
 We are unanimously of opinion, that the law passed by the legis- 
 lature of Maryland, imposing a tax on the Bank of the United 
 States, is unconstitutional and void. 
 
 This opinion does not deprive the States of any resources which 
 they originally possessed. It does not extend to a tax paid by 
 the real property of the bank, in common with the other real 
 property within the State, nor to a tax imposed on the interest 
 which the citizens of Maryland may hold in this institution, in 
 common with other property of tts same description throughout 
 the State. But this is a tax on the operations of the bank, and, 
 is consequently, a tax on the operation of an instrument employed 
 by the government of the Union to carry its powers into execu- 
 tion. Such a tax must be unconstitutional. 
 
 CARPENTER ET AL V. SNELLING. 
 
 Supreme Judicial Court of Massachusetts. October, 1867. 
 97 Massachusetts, 452. 
 
 Replevin by the assignees in insolvency of the estate of George 
 W. Pettes. 
 
 The plaintiffs contended that the papers which passed between 
 
 Pettes and the defendant constituted a mortgage; that they were 
 
 not so stamped with internal revenue stamps of the United State? 
 
 -as to authorize the defendant to introduce them in evidence to show 
 
 title to the property. 
 
 BIOELOW, C. J. The only remaining question is whether the writ-
 
 THE COLLECTOR V. DAY. 61 
 
 ten instruments under which the defendant claims the property in 
 dispute should have been excluded for want of sufficient stamps under 
 the provisions of the revenue laws of the United States. 
 
 But there is another view of this part of the case which leads 
 us to the conclusion that the want of a stamp did not render the 
 written document offered by the defendant inadmissible. The pro- 
 vision of the statute of the United States already cited does not in 
 terms apply to the courts of the several states. The language of 
 the enactment is only that no instruments or documents not duly 
 stamped shall "be admitted or used as evidence in any court" until 
 the requisite stamps shall be affixed. This provision can have full 
 operation and effect if construed as intended to apply to those courts 
 only which have been established under the constitution of the 
 United States and by acts of Congress, over which the federal legis- 
 lature can legitimately exercise control, and to which they can 
 properly prescribe rules regulating the course of justice and the 
 mode of administering justice. We are not disposed to give a 
 broader interpretation to the statute. We entertain grave doubts 
 whether it is within the constitutional authority of Congress to 
 enact rules regulating the competency of evidence on the trial of 
 cases in the courts of the several states, which shall be obligatory 
 upon them. We are not aware that the existence of such a power 
 has ever been judicially sanctioned. There are numerous and 
 weighty arguments against its existence. We cannot hold that 
 there was an intention to exercise it, where, as in the provision 
 now under consideration, the language is fairly susceptible of a 
 meaning which will give it full operation and effect within the 
 recognized scope of the constitutional authority of Congress. 
 
 Exceptions overruled. 
 
 THE COLLECTOR V. DAY. 
 
 Supreme Court of the United States. December, 1870. 
 11 Wallace 113. 
 
 Mr. Justice NELSON delivered the opinion of the court. 
 The case presents the question whether or not it is competent 
 for Congress, under the Constitution of the United States, to im- 
 pose a tax upon the salary of a judicial officer of a State? 
 In Dobbins V. The Commissioners of Erie County, 16 Peters
 
 62 LIMITATIONS OF THE TAXING POWKIJ. 
 
 435, it was decided that it was not competent for the legislature of 
 a State to levy a tax upon the salary or emoluments of an officer 
 of the United States. The decision was placed mainly upon the 
 ground that the officer was a means or instrumentality employed 
 for carrying into effect some of the legitimate powers of the govern- 
 ment, which could not be interfered with by taxation or otherwise 
 by the States, and that the salary or compensation for the service 
 of the officer was inseparably connected with the office; that if tho 
 officer, as such, was exempt, the salary assigned for his support or 
 maintenance while holding the office was also, for like reasons, 
 equally exempt. 
 
 And we shall now proceed to show that, upon 
 
 the same construction of that instrument, and for like reasons, 
 that government is prohibited from taxing the salary of the judi- 
 cial officer of a State. 
 
 It is a familiar rule of construction of the Constitution of the 
 Union, that the sovereign powers vested in the State governments 
 by their respective constitutions, remained unaltered and unim- 
 paired, except so far as they were granted to the government of 
 the United States. That the intention of the framers of the Con- 
 stitution in this respect might not be misunderstood, this rule 
 of interpretation is expressly declared in the tenth article of the 
 amendments, namely: "The powers not delegated to the United 
 States are reserved to the States respectively, or, to the people." 
 The government of the United States, therefore, can claim no pow- 
 ers which are not granted to it by the Constitution, and the powers 
 actually granted must be such as are expressly given, or given 
 by necessary implication. 
 
 The general government, and the States, although both exist 
 within the same territorial limits, are separate and distinct sov- 
 ereignties, acting separately and independently of each other, within 
 their respective spheres. The former in its appropriate sphere is 
 supreme; but the States within the limits of their powers not 
 granted, or, in the language of the tenth amendment, "reserved," 
 are as independent of the general government as that government 
 within its sphere is independent of the States. 
 
 Such being the separate and independent con- 
 dition of the States in our complex system, as recognized by the 
 Constitution, and the existence of which is so indispensable, that, 
 without them, the general government itself would disappear from 
 the family of nations, it would seem to follow, as a reasonable, if 
 not a necessary consequence, that the means and instrumentalities
 
 THE COLLECTOE V. DAY. 63 
 
 employed for carrying on the operations of their governments, for 
 preserving their existence, and fulfilling the high and responsible 
 duties assigned to them in the Constitution, should be left free and 
 unimpaired, should not be liable to be crippled, much less defeated 
 by the taxing power of another government, which power acknowl- 
 edges no limits but the will of the legislative body imposing the 
 tax. 
 
 It is admitted that there is no express provision 
 
 in the Constitution that prohibits the general government from 
 taxing the means and instrumentalities of the States, nor is there- 
 any prohibiting the States from taxing the means and instrumen- 
 talities of that government. In both cases the exemption rests upon 
 necessary implication, and is upheld by the great law of self-preser- 
 vation; as any government, whose means employed in conducting 
 its operations, if subject to the control of another and distinct 
 government, can exist only at the mercy of that government. Of 
 what avail are these means if another power may tax them at 
 discretion ? 
 
 But we are referred to the Veazie Bank v. Fenno, 8 Wallace 
 533, in support of this power of taxation. That case furnishes a 
 strong illustration of the position taken by the Chief Justice in 
 M'Culloch v. Maryland, namely, "That the power to tax involves 
 the power to destroy." 
 
 The power involved was one which had been exercised by the 
 States since the foundation of the government, and had been, after 
 the lapse of three-quarters of a century, annihilated from excessive 
 taxation by the general government, just as the judicial office in the 
 present case might be, if subject, at all, to taxation by that govern- 
 ment. But, notwithstanding the sanction of this taxation by a 
 majority of the court, it is conceded, in the opinion, that "the 
 reserved rights of the States, such as the right to pass laws; to give 
 effect to laws through executive action; to administer justice 
 through the courts, and to employ all necessary agencies for legit- 
 imate purposes of State government, are not proper subjects of 
 the taxing power of Congress/' This concession covers the case 
 before us, and adds the authority of this court in support of the 
 doctrine which we have endeavored to maintain. 
 
 Mr. Justice BRADLEY, dissenting.
 
 64 LIMITATIONS OF THE TAXING POWER. 
 
 2. Taxation of Government Bonds. 
 WESTON ET AL V. THE CITY COUNCIL OF CHARLESTON. 
 
 Supreme Court of the United States. January, 1829. 
 2 Peters, 449. 
 
 Mr. Chief Justice MARSHALL delivered the opinion of the Court. 
 
 This brings us to the main question. Is the stock issued for 
 loans made to the government of the United States liable to be 
 taxed by states and corporations?* 
 
 Congress has power "to borrow money on the credit of the 
 United States/' The stock it issues is the evidence of a debt 
 created by the exercise of this power. The tax in question is a tax 
 upon the contract subsisting between the government and the indi- 
 vidual. It bears directly upon that contract, while subsisting and 
 in full force. The power operates upon the contract the instant 
 it is framed, and must imply a right to affect that contract. 
 
 If the states and corporations throughout the Union, possess 
 the power to tax a contract for the loan of money, what shall arrest 
 this principle in its application to every other contract? What 
 measure can government adopt which will not be exposed to its 
 influence ? 
 
 If the right to impose the tax exists, it is a right which in its 
 nature acknowledges no limits. It may be carried to any extent 
 within the jurisdiction of the state or corporation which imposes it, 
 which the will of each state and corporation may prescribe. A power 
 which is given by the whole American people for their common 
 good, which is to be exercised at the most critical periods for tho 
 most important purposes, on the free exercise of which the inter- 
 ests certainly, perhaps the liberty of the whole may depend; may be 
 burthened, impeded, if not arrested, by any of the organized parts 
 of the confederacy. 
 
 This subject was brought before the court in the case of 
 M'Cullough v. The State of Maryland, 4 Wheaton 316, when it was 
 thoroughly argued and deliberately considered. The question 
 
 The ordinance imposing the tax under consideration imposed a tax of 
 twenty-five cents on every hundred dollars on- certain enumerated kinds of 
 personal property including "six and seven per cent stock of the United 
 States."
 
 WESTOX ET AL. V. CHARLESTON. 65 
 
 decided in that case bears a near resemblance to that which is 
 involved in this 
 
 We retain the opinions which were then expressed. A contract 
 made by the government in the exercise of its power, to borrow 
 money on the credit of the United States, is undoubtedly independ- 
 ent of the will of any state in which the individual who lends may 
 reside, and is undoubtedly an operation essential to the important 
 objects for which the government was created, It ought, therefore, 
 on the principles settled in the case of M'Culloch v. The State of 
 Maryland, to be exempt from state taxation, and consequently from 
 being taxed by corporations deriving their power from states. 
 
 It is admitted that the power of the government to borrow money 
 can not be directly opposed, and that any law directly obstructing 
 its operation would be void; but, a distinction is taken between 
 direct opposition and those measures which may consequentially 
 affect it; that is, that a law prohibiting loans to the United States 
 would be void, but a tax on them to any amount is allowable. 
 
 It is, we think, impossible not to perceive the intimate connec- 
 tion which exists between these two modes of acting on the subject. 
 
 It is not the want of original power in an independent sovereign 
 state, to prohibit loans to a foreign government, which restrains 
 the legislature from direct opposition to those made by the United 
 States. The restraint is imposed by our Constitution. The Ameri- 
 can people have conferred the power of borrowing money on their 
 government, and by making that government supreme, have shielded 
 its action, in the exercise of this power, from the action of the 
 local governments. The grant of the power is incompatible with a 
 restraining or controlling power, and the declaration of supremacy 
 is a declaration that no such restraining or controlling power shall 
 be exercised. 
 
 The right to tax the contract to any extent, when made, must 
 operate upon the power to borrow before it is exercised, and have a 
 sensible influence on the contract. The extent of this influence 
 depends on the will of a distinct government. To any extent, how- 
 ever inconsiderable, it is a burthen on the operations of government. 
 It may be carried to an extent which shall arrest them entirely. 
 
 It has been supposed that a tax on stock comes within the ex- 
 ceptions stated in the case of M'Cullough v. The State of Mary- 
 land. We do not think so. The Bank of the United States is an 
 instrument essential to the fiscal operations of the government, ind 
 the power which might be exercised to its destruction was denied. 
 5
 
 66 LIMITATIONS OF THE TAXING POWER. 
 
 But property acquired by that corporation in a state was supposed 
 to be placed in the same condition with property acquired by an 
 individual. 
 
 The tax on government stock is thought by this court to be a 
 tax on the contract, a tax on the power to borrow money on the 
 credit of the United States, and consequently to be repugnant to 
 the Constitution. 
 
 We are, therefore, of opinion that the judgment of the Consti- 
 tutional Court of the State of South Carolina, reversing the order 
 made by the Court of Common Pleas, awarding a prohibition to 
 the City Council of Charleston, to restrain them from levying a 
 tax imposed on six and seven per cent stock of the United States, 
 under an ordinance to raise supplies to the use of the city of 
 Charleston for the year 1823, is erroneous in this: that the said 
 Constitutional Court adjudged that the said ordinance was not 
 repugnant to the Constitution of the United States; whereas, this 
 Court is of opinion that such repugnancy does exist. We are, 
 therefore, of opinion that said judgment ought to be reversed and 
 annulled, and the cause remanded to the Constitutional Court for 
 the State of South Carolina, that further proceedings may be had 
 therein according to law. 
 
 Mr. Justice JOHNSON, dissentiente. 
 
 BANK OF COMMERCE V. NEW YORK CITY. 
 
 Supreme Court of the United States. December, 1862. 
 2 Black, 620. 
 
 Mr, Justice NELSON. 
 
 This is a writ of error to the Court of Appeals of the State of 
 New York. 
 
 The question involved in this case is, whether or not the stock 
 of the United States, constituting a part or the whole of the cap- 
 ital stock of a bank organzed under the banking laws of New York, 
 is subject to State taxation. The capital of the bank is taxed un- 
 der existing laws in that State upon valuation like the property 
 of individual citizens, and not as formerly on the amount of the 
 nominal capital, without regard to loss or depreciation. 
 
 According to that system of taxation it was immaterial as to the 
 character or description of property which constituted the capital, 
 as the tax imposed was wholly irrespective of it. 
 
 The tax was like one annexed to the franchise as a royalty for
 
 BANK OF COMMERCE V. .NEW YORK. i;: 
 
 the grant. But since the change of this system it is agreed the tax 
 is upon the property constituting the capital. 
 
 This stock then is held by the bank the same as such stocks are 
 held by individuals, and alike subject to taxation or exemption by 
 State authority. On the part of the bank it is claimed that the- 
 question was decided in the case of Weston et als. v. The City 
 Councils of Charleston (2 Peters, 449), in favor of exemption. 
 In that case the stocks were in the hands of individuals which were 
 taxed by the city authorities under a law of the State. The Court 
 held the law imposing the tax unconstitutional. This decision 
 M-ould seem not only to cover the case before us, but to determine 
 the very point involved in it. 
 
 It has been argued, however, that the form or mode of levying 
 the tax under the ordinance of the City of Charleston was different 
 from that of the law of Xew York, and hence may well distinguish 
 the case and its principles from the present one. This difference 
 consists in the circumstance that the tax in the former case was 
 imposed on the .stock, eo nomine whereas in the present it is taxed 
 in the aggregate of the tax-payer's property, and to be valued at it& 
 real worth in the same manner as all other items of his taxable 
 property. The stock is not taxed by name, and no discrimination 
 is made in favor or against it, but is regarded like any other se- 
 curity for money or chose in action. 
 
 It is true that the ordinance imposing the tax in the case of 
 Weston v. The City of Charleston did discriminate between the 
 stock of the United States and other property that is, the ordi- 
 nance did not purport to impose a tax upon all the property owned 
 by the tax-payers of the City, and specially excepted certain prop- 
 erty altogether from taxation. The only uniformity in the taxation 
 was that it was levied equally upon the articles enumerated, and 
 which were taxed. To this extent it might be regarded as a tax 
 on the stock eo nomine. 
 
 But does this distinction thus put forth between the two casec? 
 distinguish them in principle? The argument admits that a tax 
 eo nomine, or one that distinguishes unfavorably the stock of the 
 United States from the other property of the tax-payer, cannot be 
 upheld. Why? Because, as is said, if this power to discriminate 
 be admitted to belong to the State, it might be exercised to the 
 destruction of the value of the stock, and consequently of the 
 power or function of the Federal Government to issue it for any 
 practical uses. 
 
 It will be seen, therefore, that the distinction claimed rests upon
 
 68 LIMITATIONS OF THE TAXING POWER. 
 
 a, limitation of the exercise of the taxing power of the State; that 
 if the tax is .imposed indiscriminately upon all the property of the 
 individual or eorporation, the stock may be included in the valua- 
 tion; if not, it must be excluded or cannot be reached. 
 
 Upon looking at the case of Weston v. The City of Charleston, 
 it will be seen that the decision of a majority of the court was not 
 at all placed upon the distinction we have been considering, but 
 upon ground much broader and wholly independent of it. 
 
 The tax upon the stocks was regarded as a tax upon the exer- 
 cise of the power of Congress "to borrow money on the credit of 
 the United States/' The exercise of this power was interfered 
 with to the extent of the tax imposed by the City authorities, that 
 the liability of the certificates of stock to taxation by a State in 
 the hands of an individual affected their value in the market, and 
 the free and unrestrained exercise of the power. The Chief Jus- 
 tice observes, that "if the right to impose a tax exists, it is a right 
 which, in its nature acknowledges no limits. It may be carried to 
 any extent within the jurisdiction of the State or corporation which 
 imposes it, which the will of each State or corporation may pre- 
 scribe. 
 
 It is apparent in studying this opinion in connection with the 
 opinions of the Court in the cases of McCullough v. The State of 
 Maryland (4 Wh., llf.), and of Osborne v. The United States 
 (9 Wh., 732), that it is but a corollary from the doctrines so ably 
 expounded by the Chief Justice in the two previous cases in the 
 interpretation of an analogous power in the Constitution. 
 
 The doctrine maintained in those cases is, that the powers 
 granted by the people of the States to the General Government, 
 and embodied in the Constitution, are supreme within their scope 
 and operation, and that this Government may exercise these pow- 
 ers in its appropriate departments, free and unobstructed by any 
 State legislation or authority. That within this limit this Govern- 
 ment is sovereign and independent, and any interference by the 
 State governments, tending to the interruption of the full legiti- 
 mate exercise of the powers thus granted, is in conflict with that 
 clause of the Constitution which makes the Constitution and the 
 laws of the United States passed in pursuance thereof "the su- 
 preme law of the land." 
 
 The result of this doctrine is, that the exercise of any authority 
 by a State Government trenching upon any of the powers granted
 
 HOME INSURANCE CO. V. NEW YORK. 69 
 
 to the General Government is, to the extent of the interference, an 
 attempt to resume the grant in defiance of constitutional obligation; 
 and more than this, if the encroachment or usurpation to any ex- 
 tent is admitted, the principle involved would carry the exercise of 
 the authority of the State to an indefinite limit, even to the de- 
 struction of the power. For, as truly said by the Chief Justice in 
 the case of Weston v. The City of Charleston, in respect to the 
 taxing power of the State, "if the right to impose the tax exists, 
 it is a right which, in its nature, acknowledges no limit, it may 
 be carried to any extent within the jurisdiction of the State or 
 corporation which imposes it, which the will of each State and cor- 
 poration may prescribe." 
 
 The case in hand is an illustration. The power to 
 
 borrow money on the credit of the United States is admitted. It is 
 one of the most important and even vital functions of the General 
 Government and its exercise a means of supplying the necessary 
 resources to meet exigencies in times of peace or war. But of 
 what avail is the function or the means if another Government 
 may tax it at discretion. It is apparent that the power, function, 
 or means, however important and vital, are at the mercy of that 
 Government. And it must be always remembered, if the right to 
 impose a tax at all exists on the part of the other Government, "it 
 id a right which in its nature acknowledges no limits.'' And the 
 principle is equally true in respect to every other power or function 
 of a Government subject to the control of another. 
 
 HOME INSURANCE CO. V. NEW YORK STATE. 
 
 Supreme Court of the United States. April, 1890. 
 134 United States, 594. 
 
 The plaintiff in error, The Home Insurance Company of New 
 York, is a corporation created under the laws of that State. Its 
 capital stock during the year 1881 was three millions of dollars, 
 divided into thirty thousand shares of the par value of one hundred 
 dollars each, all fully paid. In the months of January and July 
 of that year a dividend of $150,000 was declared by the company, 
 making together ten per cent upon the par value of its stock. A 
 portion of that capital stock was invested in bonds of the United 
 States, amounting, when the dividend was declared in July, 1881, 
 and also on the first of November of that year, to $1,940,000.
 
 70 LIMITATIONS OF THE TAXING POWER. 
 
 By an act of the legislature of New York, passed May 26, 1881, 
 c. 361, amending a previous act providing for the taxation of cer- 
 tain corporations, joint stock companies and associations, it wa 
 declared that every corporation, joint stock company or association, 
 then or thereafter incorporated under any law of the State, or of 
 any other State or country, and doing business in the State, with 
 certain designated exceptions not material in this case, should be 
 subject to a tax upon "its corporate franchise or business." 
 
 The tax payable by the Home Insurance Company, estimated ac- 
 cording to its dividends, under the above law of the State, aggre- 
 gated $7,500 
 
 Mr. Justice FIELD, after stating the case, delivered the opinion 
 of the court. 
 
 The contention of the plaintiff in error is that the tax in ques- 
 tion was levied upon its capital stock, and therefore invalid so far 
 as the bonds of the United States constitute a part of that stock. 
 If that contention were well founded there would be no question as 
 to the invalidity of the tax. That the bonds or obligations of the 
 United States for the payment of money cannot be the subject of 
 taxation by a State is familiar law settled by numerous adjudica- 
 tions of this Court. It is a tax upon the exercise of the power of 
 Congress to borrow money ; a tax which, if permitted, could be 
 limited in amount only by the discretion of the State, and might 
 therefore be carried to an extent impairing, if not destructive of, 
 the efficiency of the power, to the serious detriment of the general 
 government. 
 
 Nor can this inhibition upon the States be evaded by any change 
 in the mode or form of the taxation, provided the same result is 
 effected that is, an impediment is thereby interposed to the exer- 
 cise of a power of the United States. That which cannot be ac- 
 complished directly cannot be accomplished indirectly. Through 
 all such attempts the court will look to the end sought to be 
 reached, and if that would trench upon a power of the Government, 
 the law creating it will be set aside or its enforcement restrained. 
 
 Looking now at the tax in this case upon the plaintiff in error, 
 we are unable to perceive that it falls within the doctrines of any 
 of the cases cited, to which we fully assent, not doubting their 
 correctness in any particular. It is not a tax in terms upon the 
 capital stock of the company, nor upon any bonds of the United
 
 HOME INSURANCE CO. V. NEW YOEK. 71 
 
 States composing a part of that stock. The statute designates it a 
 tax upon the "corporate franchise or business" of the company, 
 and reference is only made to its capital stock and dividends for 
 the purpose of determining the amount of the tax to be exacted 
 each year. 
 
 By the term "corporate franchise or business," as here used, we 
 understand is meant (not referring to corporations sole, which arc 
 not usually created for commercial business) the right or privilege 
 given by the State to two or more persons of being a corporation 
 that is, of doing business in a corporate capacity, and not the privi- 
 lege or franchise which, when incorporated, the company may exer- 
 cise. The right or privilege to be a corporation, or to do business 
 as such body, is one generally deemed of value to the corporators, 
 or it would not be sought in such numbers as at present. It is a 
 right or privilege by which several individuals may unite them- 
 selves under a common name and act as a single person, with a 
 succession of members, without dissolution or suspension of business 
 and with a limited individual liability. The granting of such right 
 or privilege rests entirely in the discretion of the State, and, of 
 course, when granted, may be accompanied with such conditions 
 as its legislature may judge most befitting to its interests and 
 policy. It may require, as a condition of the grant of the fran- 
 chise, and also of its continued exercise, that the corporation pay a 
 specific sum to the State each year, or month, or a specific portion 
 of its gross receipts, or of the profits of its business, or a sum to 
 be ascertained in any convenient mode which it may prescribe. The 
 validity of the tax can in no way be dependent upon the mode 
 which the State may deem fit to adopt in fixing the amount for 
 any year which it will exact for the franchise. No constitutional 
 objection lies in the way of a legislative body prescribing any mode 
 of measurement to determine the amount it will charge for the 
 privileges it bestows. It may well seek in this way to increase its 
 revenue to the extent to which it has been cut off by exemption 
 of other property from taxation. As its revenues to meet expenses 
 are lessened in one direction, it may look to any other property as 
 sources of revenue, which is not exempted from taxation. Its action 
 in this matter is not the subject of judicial inquiry in a federal 
 tribunal. 
 
 If any hardship or oppression is created by the 
 
 amount exacted, the remedy must be sought by appeal to the Legis- 
 lature of the State; it cannot be furnished by the federal tribunals. 
 
 The tax in the present case would not be affected if the nature
 
 72 LIMITATIONS OF THE TAXING POWER. 
 
 of the property in which the whole capital stock is invested were 
 changed and put into real property or bonds of New York, or oi' 
 other States. From the very -nature of the tax, being laid upon a 
 franchise given by the state, and revocable at pleasure, it cannot be 
 affected in any way by the character of the property in which its 
 capital stock is invested. The power of the State over the cor- 
 porate franchise and the condition upon which it shall be exer- 
 cised, is as ample and plenary in the one case as in the other. 
 
 This doctrine of the taxability of the franchises of a corporation 
 without reference to the character of the property in which its cap- 
 ital stock or its deposits are invested is sustained by the judg- 
 ments in Society for Savings v. Coite, 6 Wall. 594, and Provident 
 Institution v. Massachusetts, 6 Wall. 611, which were before this 
 Court at December Term, 1867. In the first of these cases it ap- 
 peared that a law of Connecticut of 1863 provided that savings 
 banks in that State should make an annual return to the controller 
 of public accounts "of the total amounts of all deposits in them, re- 
 spectively, on the first day of July in each successive year," and 
 should pay to the treasurer of the State a sum equal to three- 
 fourths of one per cent on the total amount of deposits in such 
 banks on those days, and that the tax should be in lieu of all other 
 taxes upon the banks or their deposits. On the first day of July, 
 18G3, the Society for Savings, one of the banks, had invested over 
 $500,000 of its deposits in securities of the United States, which 
 were declared by Congress to be exempted from taxation by state 
 authority, whether held by individuals, corporations, or associa- 
 tions. 12 Stat. 346, c. 33, 2. Upon the amount of its deposits 
 thus invested the society refused to pay the sum equal to the pre- 
 scribed percentage. In a suit brought by the treasurer of the State- 
 to recover the tax, the payment of which was thus refused, the 
 Supreme Court of Connecticut held that the tax was not on prop- 
 erty but on the corporation as such. The case being brought here, 
 the judgment was affirmed, this Court holding that the tax was 
 on the franchise of the corporation and not upon its property, and 
 the fact that a part of the deposits was invested in securities of 
 the United States did not exempt the society from the tax. Said 
 the Court: "Nothing can be more certain in legal decision than 
 that the privileges and franchises of a private corporation, and all 
 trades and avocations by which the citizens acquire a livelihood, may 
 be taxed by a State for the support of the State Government. Au- 
 thority to that effect resides in the State independent of the federal
 
 HOME INSURANCE CO. V. NEW YORK. 73 
 
 government, and is wholly unaffected by the fact that the corpora- 
 tion or individual has or has not made investment in federal securi- 
 ties." Pages 606-607. 
 
 It was contended in that case that the deposits in the bank were 
 subjected to taxation from the fact that the extent of the tax was 
 determined by their amount. But the court said: "Reference is 
 evidently made to the total amount of deposits on the day named, 
 not as the subject matter for assessment, but as the basis for com- 
 puting the tax required to be paid by the corporation defendants. 
 They enjoy important privileges, and it is just that they should 
 contribute to the public burdens. Views of the defendants are, 
 that the sums required to be paid to the treasury of the State is a 
 tax on the assets of the institution, but there is not a word in 
 the provision which gives any satisfactory support to that proposi- 
 tion. Different modes of taxation are adopted in different States, 
 and even in the same State at different periods of their history. 
 Fixed sums are in some instances required to be annually paid 
 into the treasury of the State, and in others a prescribed percentage 
 is levied on the stock, assets or property owned or held by the 
 corporation, while in others the sum required to be paid is left 
 indefinite, to be ascertained in some mode by the amount of busi- 
 ness which the corporation shall transact within a definite period. 
 Experience shows that the latter mode is better calculated to effect 
 justice among the corporations required to contribute to the public 
 burdens than any other which has been devised, as its tendency b 
 to graduate the required contribution to the value of the privileges 
 granted and to the extent of their exercise. Existence of the power 
 is beyond doubt, and it rests in the discretion of the Legislature 
 whether they will levy a fixed sum, or if not, to determine in what 
 manner the amount shall be ascertained." P. 608. 
 
 In the second case mentioned, Provident Institution v. Massa- 
 chusetts, it appeared that the statute of Massachusetts, passed in 
 1862, levying taxes on certain insurance companies and depositor^ 
 in savings banks, provided that every institution for savings incor- 
 porated under its laws should pay to the commonwealth a tax of 
 one-half of one per cent per annum on the amount of its deposits, 
 to be assessed one-half of said annual tax on the average amount 
 of its deposits for the six months preceding the 1st day of May, 
 and the other half on the average amount of its deposits for the 
 six months preceding the 1st day of November. The Provident 
 Institution for Savings in that State was authorized to invest its 
 deposits in securities of the United States. Its average amount of
 
 74 LIMITATIONS OF THE TAXING POWER. 
 
 deposits for the six months preceding the 1st day of May, 1865, 
 was over eight millions, of which over one million was invested in 
 such securities. It paid all the taxes demanded except on the por- 
 tion which was thus invested. Upon that it declined to pay the 
 tax. In a suit brought by the commonwealth to recover the same, 
 the Supreme Judicial Court of the State held that the tax was one 
 on the franchise of the company and not on the property, and 
 therefore gave judgment for the commonwealth. The case being 
 brought here, the judgment was affirmed. In deciding the case, this- 
 court said, referring to a section of the statute under which the 
 1 tax was levied: "Deposits, as the word is employed in that section, 
 are the sums received by the institution from depositors, without 
 regard to the nature of the funds. They are not capital stock in 
 any sense, nor are they even investments, as the word is there 
 used, which simply *means the sums received wholly irrespective of 
 the disposition made of the same, or their market value." And 
 speaking of the difference existing between taxes on franchises 
 and taxes upon property it said: "Franchise taxes are levied 
 directly by an act of the legislature, and the corporations are re- 
 quired to pay the amount into the state treasury. They differ 
 from property taxes as levied for state and municipal purposes in 
 the basis prescribed for computing the amount, in the manner of 
 assessment, and in the mode of collection." And again, "Compara- 
 tive valuation in assessing property taxes is the basis of computation 
 in ascertaining the amount to be contributed by an individiual, but 
 the amount of a franchise tax depends upon the business trans- 
 acted by the corporation and the extent to which they have exer- 
 cised the privileges granted in their charter." Pages 631, 632. 
 
 In Hamilton Company v. Massachusetts, 6 Wall. 632, a statute 
 of Massachusetts which required corporations having a capital stock 
 divided into shares, to pay a tax of a certain percentage upon the 
 excess of the market value of such stock over the value of its real 
 estate and machinery, was sustained as a statute imposing a fran- 
 chise tax, notwithstanding a portion of the property consisted of 
 securities of the United States; this court, however, placing its 
 decision upon the fact that under the provisions of the State con- 
 stitution and the practice under it the tax had been so considered 
 by the highest tribunal of the State. This decision goes much 
 farther than is necessary to sustain the judgment of the Court of 
 Appeals of New York in the present case. 
 
 In this case we hold, as well upon general principles a? upon the
 
 PLUMMEH V. COLER. 75 
 
 authority of the first two cases cited from 6th Wallace, tliat the 
 tax for which the suit is brought is not a tax on the capital stock 
 or property of the company, but upon its corporate franchise, and 
 is not therefore subject to the objection stated by counsel, because 
 a portion of its capital stock is invested in securities of the United 
 States 
 
 Mr Justice MILLER (with whom concurred Mr. Justice HARLAN) 
 dissenting. 
 
 Mr. Justice Harlan and myself dissent from the judgment in 
 this case, because we think that, notwithstanding the peculiar 
 language of the statute of Xew York, the tax in controversy is, in 
 effect, a tax upon bonds of the United States held by the insurance 
 company. 
 
 This is not the rule, however in Pennsylvania where the courts hold that 
 a tax on a corporation based in amount on a valuation of its stock is a tax on 
 the stock and may not be levied on that portion of the stock which is in- 
 vested in United States securities exempted by law of Congress from taxa- 
 tion. Fox's Appeal 112 Pa. State 354. A tax on the franchise of a domestic 
 corporation measured by the value of its patent rights where such rights were 
 its only property, is proper. People ex rel U. S. Aluminum Printing Co. v. 
 Knight 171 N. Y. 475, overruling People ex rel Johnson Co. v. Roberts, 159 
 N. Y. 70, holding to the opposite rule in the case of a corporation whose 
 property was copyrights. A tax on the shareholders of national banks without 
 deduction for amount of United States bonds owned by the bank is proper, 
 Van Allen v. The Assessors, 3 Wallace 573. 
 
 PLUMMER V. COLER. 
 
 Supreme Court of the United States. October, 1899. 
 178 United States 115. 
 
 Joseph Plummer, a citizen and resident of New York, died Octo- 
 ber 28, 1898, leaving a last will whereby he bequeathed to Harry 
 Plummer, his executor, forty thousand dollars in United States 
 bonds, issued under the funding act of 1870, in trust, to hold the 
 same during the life time of Ella Plummer Brown, daughter of 
 the testator, and to pay the income thereof to her during her life, 
 and at her death to divide the same between and amongst her issue 
 then living. 
 
 The value of this life interest was computed by the appraisers at 
 the sum of $16,120, and a tax of $161.20 was imposed thereon by 
 the surrogate of the county of New York. From this appraisal and 
 the order imposing the tax an appeal was taken to the Surrogate's 
 Court of the county and State of Xew York.
 
 76 LIMITATIONS OF THE TAXING TOWER. 
 
 On December 22, 1899, the Surrogate's Court affirmed the ap- 
 praisal and the order imposing a tax. Thereupon Harry Plummer, 
 executor, appealed to the appellate division of the Supreme Court 
 of the State of New York, which court on January 5, 1900, 
 affirmed the order of the surrogate and the decree of the Surro- 
 gate's Court. From this decree of the appellate division of the Su- 
 preme Court an appeal was taken to the Court of Appeals of the 
 State of Xew York, where, on January 8, 1900, the proceedings and 
 order of the surrogate and the decree of the appellate division were 
 affirmed. 
 
 In the notice of appeal to the Surrogate's Court and in that of 
 the appeal to the Court of Appeals the grounds of appeal were 
 stated to be the invalidity of the statute of New York purporting 
 to impose a tax upon a transfer by legacy of bonds of the United 
 States, and the invalidity of the statute, of the State of New York 
 and of the authority exercised thereunder by the appraiser and 
 the surrogate, in ?o far as United States bonds were concerned. 
 And the appellant specially set up and claimed a title, right, privi- 
 lege and immunity under the constitution of the United States in 
 respect to the exemption of said bonds from state taxation in any 
 form. 
 
 Mr. Justice SHIRAS, after stating the case, delivered the opinion 
 of the court. 
 
 In this case we are called upon to consider the question whether, 
 under the inheritance tax laws of a State, a tax may be validly im- 
 posed on a legacy consisting of United States bonds issued under a 
 statute declaring them to be exempt from state taxation in any 
 form. 
 
 It is not open to question that a State cannot, in the exercise of 
 the power of taxation, tax obligations of the United States. Wes- 
 ton v. Charleston, 2 Pet., 449; Panic of Commerce v. New York- 
 City, 2 Black., 620; Home Insurance Company v. New York, 134 
 V. S., 594, 598. 
 
 So, likewise, it is settled law that bonds issued by a State, or 
 under its authority by its public municipal bodies, are not taxable 
 by the United States. Mercantile Bank v. New York, 121 U. S., 
 138; Pollock v. Farmers' Loan and Trust Co. 157 U. S., 429, 583. 
 
 \Yith these concessions made, we are brought to the pivotal ques- 
 tion in the case, and that question is thus presented in the second 
 point discussed in the brief filed for the plaintiff in error. "If the 
 question of the right of the State to impose the tax now in question
 
 PLUMMER V. COLER. 77 
 
 be considered merely with reference to the inherent lack of power 
 of the State to impose such a tax, because of the provisions of the 
 Constitution of the United States bearing upon that question, with- 
 out any aid from the statute of the United States under which 
 these bonds were issued, or the exemption clause contained in the 
 bonds, we conceive it to be entirely clear that the tax in question 
 is unconstitutional, because impairing and burdening the borrowing 
 power of the United States." Or, as stated elsewhere in the brief: 
 "The States have no power to impose any tax or other burden 
 which would have- the effect to prevent or hinder the Government 
 of the United States from borrowing such amounts of money as it 
 may require for its purposes, on terms as beneficial and favorable 
 to itself, in all respects, as it could do if no such tax were im- 
 posed by the State." 
 
 It will be observed that these propositions concede that the tax 
 law of the State of Xew York in question, does not expressly, or 
 by necessary implication, propose to tax federal securities. It is 
 only when and if, in applying that law to the estates of decedents, 
 such estates are found to consist wholly or partly of United State* 
 bonds, that the reasoning of the plaintiff in error, assailing the 
 validity of the statute, can have any application. And the con- 
 tention is that individuals, in forming or creating their estates, 
 will or may be deterred from offering terms, in the purchasing of 
 such bonds, as favorable as they otherwise might do, if they are 
 bound to know that such portion of their estates of such bonds is 
 to be included, equally with other property, in the assessment of 
 an inheritance tax. 
 
 Before addressing ourselves directly to the discussion of these 
 propositions we shall briefly review the decisions in whose light 
 they must be determined. 
 
 And, first, what is the voice of the state courts? 
 
 The decision of the state courts may be summarized by the 
 statement that it is competent for the legislature of a State to 
 impose a tax upon the franchises of the corporations of the State, 
 and upon the estates of decedents resident therein, and in assess- 
 ing such taxes and as a basis to establish the amount of such as- 
 sessments, to include the entire property of such corporations and 
 decedents, although composed, in whole or in part, of United 
 States bonds; and that the theory upon which this can be done 'con- 
 sistently with the Constitution and laws of the United States is 
 that such taxes are to be regarded as imposed, not upon the prop-
 
 78 LIMITATIONS OF THE TAXING POWER. 
 
 erty, the amount of which is referred to as regulating the amount 
 of the taxes, but upon franchises and privileges derived from the 
 State. 
 
 Let us now proceed to a similar survey of the federal authorities 
 on this subject. 
 
 Mager v. Grima, 8 How., 490, was a case where, by the law oi' 
 Louisiana, a tax of ten per cent was imposed on legacies, when the 
 legatee is neither a citizen of the United States nor domiciled in 
 that State, and the executor of the deceased or other person charged 
 with the administration of the estate was directed to pay the tax 
 
 to the state treasurer The validity of the act was 
 
 sustained by the state courts and the cause was brought to this court. 
 The judgment of the state court was here affirmed. 
 
 In Van Allen v. The Assessors, 3 Wall. 573, it was held that it 
 was competent for Congress to authorize the States to tax the shares 
 of banking associations organized under the act of June 3, 1864, 
 without regard to the fact that a part or the whole of the capital 
 of such association was invested in national securities declared by 
 the statutes authorizing them to be "exempt from taxation by or 
 under state authority." This decision has ever since been acted 
 upon, and its authority has never been questioned by any court, 
 and from it we learn that there is no undeviating policy that, at all 
 times and in all circumstances, the tax systems of the States shall 
 not extend to Federal securities. 
 
 The next cases to be noted are: Society for Savings v. Coite, 6 
 Wall., 594; Provident Insurance Co. v. Massachusetts, 6 Wall., 
 Gil; and Hamilton Company v. Massachusetts, 6 Wall., 632. 
 
 In these cases this court affirmed the Supreme Courts of Con- 
 necticut and Massachusetts in holding that state taxes may be im- 
 posed, the amount of which may be determined by the aggregate 
 amount of the property or capital stock of banking and manufac- 
 turing companies, even if such property or capital stock include? 
 United States bonds issued under a statute declaring them exempt 
 from taxation under state authority 
 
 Next worthy of notice is the case of Home Insurance Co. v. New 
 York, 134 U. S., 594. It came here on error to the Supreme 
 Court of the State of New York, whose judgment had been affirmed 
 in the Court of Appeals, and was twice argued. The question con- 
 sidered was whether a statute of the State of New York was valid 
 in respect to imposing a tax upon a New York corporation, meas- 
 ured and regulated by the amount of its annual dividends, where
 
 PLUMMER V. COLER. 79 
 
 those dividends were partly composed of interest of United States 
 bonds owned by the corporation. 
 
 In this court the question was elaborately argued, 
 
 as may be seen in the first report of the case in 119 U. S., 121); and 
 it was again contended that the case fell within the principle of 
 public policy that the States have no power, .by taxation or other- 
 wise, to retard, impede, burden or in any manner control the opera- 
 tions of the instrumentalities of the national government, and 
 also that the tax in question was repugnant to the Fourteenth 
 Amendment of the Constitution of the United States. 
 
 The reasoning of the State Court was substantially approved and 
 their judgment, sustaining the validity of the state statute, was 
 affirmed. 
 
 * 
 
 In United States v. Perkins, 163 U. S. 625, the question was 
 whether personal property bequeathed by will to the United States 
 was subject to an inheritance tax under the law of the State of 
 New York. 
 
 The facts of the case were that one William W. Merriam, a 
 resident of the State of New York, left a last will and testament, 
 by which he devised and bequeathed all his estate, real and per- 
 sonal, to the United States. The surrogate assessed an inheritance 
 tax of $3,964.23 upon the personal property included in said be- 
 quest. Upon appeal to the general term of the Supreme Court the 
 order of the Surrogate's Court was affirmed, and upon a further 
 appeal to the Court of Appeals the judgment of the Supreme Court 
 was affirmed, and the cause was brought to this court. 
 
 It was contended that, upon principle, property of the United 
 States was not subject to State taxation; but it was held by this 
 court, affirming the judgment of the courts below, that the tax 
 was not open to the objection that it was an attempt to tax the 
 property of the United States, since the tax was imposed upon the 
 legacy before it reached the hands of the legatee; that the legacy 
 became the property of the United States after it had suffered a 
 diminution to the amount of the tax, and that it was only upon 
 such a condition that the legislature assented to a bequest of it. 
 
 One of the propositions recognized in that case applicable to the 
 present one is that a state tax that would be invalid if imposed 
 directly on a legacy to the United States, may be valid if the 
 amount of the tax is taken out of the legacy before it reaches the 
 hands of the government the theory of such a view apparently 
 being that the property rights of the government do not attach until
 
 80 LIMITATIONS OF THE TAXING POWEK. 
 
 after the tax has been paid, or until the condition imposed by the 
 tax law of the State has been complied with. Such is also the case 
 in respect to the legacy to Ella Plummer Brown, as the statute in 
 question distinctly makes it the duty of the executor to pay the 
 amount of the tax before the legacy passed to the legatee. 
 
 In closing our review of the federal decisions the case of Wallace 
 v. Myers, 38 Fed. Rep. 184, may be properly referred to, especially 
 as it has been cited with approval by this Court in United States v. 
 Perkins, 163 U. S., 625, 629. 
 
 The question involved was the very one we are now considering, 
 namely, the validity of the inheritance tax law of the State of New 
 York when applied to a legacy consisting of United States bonds. 
 In his opinion Circuit Judge Wallace reviewed many of the state 
 and Federal decisions heretofore referred to, and reached the con- 
 clusion that the tax was to be regarded as imposed, not upon the 
 bonds, but upon the privilege of acquiring property by will or in- 
 heritance, and that where the property of the decedent included 
 United States bonds, the tax may be assessed upon the basis of their 
 value. 
 
 We think the conclusion, fairly to be drawn from the state and 
 Federal cases, is, that the right to take property by will or descent 
 is derived from and regulated by municipal law; that, in assessing 
 a tax upon such right or privilege, the State may lawfully measure 
 or fix the amount of the tax by referring to the value of the prop- 
 erty passing; and that the incidental fact that such property is 
 composed, in whole or in part, of Federal securities, does not in- 
 validate the tax or the law under which it is imposed. 
 
 Passing from the authorities, let us briefly consider some of the 
 arguments advanced in the able and interesting brief filed in behalf 
 of the plaintiff in error. 
 
 The propositions chiefly relied on are, first, that an inheritance 
 tax, if assessed upon a legacy or interest composed of United States 
 bonds, is within the very letter of the United States statute which 
 declares that such bonds shall be "exempt from taxation in any 
 form by or under state, municipal or local authority;" and, sec- 
 ond, that the tax in question is unconstitutional, because impairing 
 and burdening the borrowing power of the United States. 
 
 But if the first proposition is sound and decisive of the question 
 in this case, then it must follow that the cases in which this court 
 has held that, in assessing a tax upon corporate franchises, the 
 amount of such a tax may be based upon the entire property, or 
 capital possessed by the corporation even when composed in whole
 
 PLUMMER V. COLER. 81 
 
 or in part of United States bonds, must be overruled. Plainly in 
 those cases, as in this, there was taxation in a form, and in them 
 as in this the amount of the tax was reached by including in the 
 assessment United States bonds. 
 
 So that we return to the authorities by which it has been estab- 
 lished that a tax upon a corporate franchise or upon the privilege 
 of taking under the statutes of wills and of descents, is a tax not 
 upon United States bonds if they happen to compose a part of the 
 capital of a corporation or of a part of the property of a decedent, 
 but upon rights and privileges created and regulated by the State. 
 
 The second proposition relied on, namely, that to permit taxation 
 of the character we are considering would operate, as a burden upon 
 the borrowing power of the United States, cannot be so readily dis- 
 posed of. Still, we think, some observations can be made which will 
 show that the mischief which it is claimed will follow if such 
 statute be sustained as valid, is by no means so great or important 
 as supposed. 
 
 And here, again, it is obvious that to affirm the second proposi- 
 tion will require an overruling of our previous cases. For, on prin- 
 ciple, if a tax on inheritances, composed wholly or in part of Fed- 
 eral securities, would, by deterring individuals from investing 
 therein, and, thus by lessening the demand for such securities, be 
 regarded as therefore unlawful, it must likewise follow that, for 
 the same reason, a tax upon corporate franchises measured by the 
 value of the corporation's property, composed in whole or in part 
 of United States bonds, would also be unlawful. 
 
 It is further contended that there is a vital difference between 
 the individual and the corporation; that the individual exists and 
 carries on his operations under natural power and of common 
 right, while the corporation is an artificial being, created by the 
 State dependent upon the State for the continuance of its exist- 
 ence, and subject to regulation and the imposition of burdens upon 
 it by the State, not at all applicable to natural persons. 
 
 Without undertaking to go beyond what has already been de- 
 cided by this court in Mager v. Grima, 8 How. 490, in Srholey v. 
 Rew, 23 Wall. 331; and in United States v. Perkins 163 U. S. 625. 
 and in the other cases heretofore cited, we may regard it as estab- 
 lished that the relation of the individual citizen and resident to the 
 State is such that his right, as the owner of property, to direct 
 its descent by will, or by permitting its descent to be regulated by 
 
 tho statute, and his right, as legatee, devisee or heir, to receive the 
 6
 
 82 LIMITATIONS OF THE TAXING POWER. 
 
 property of his testator or ancestor, are rights derived from and 
 regulated by the State, and we are unable to perceive any sound 
 distinction that can be drawn between the power of the State in 
 imposing taxes upon franchises of corporations, composed of in- 
 dividual persons, and in imposing taxes upon the right or privilege 
 of individuals to avail themselves of the right to grant and to 
 receive property under the statutes regulating the descent of the 
 property of decedents. And, at all events, the mischief appre- 
 hended, of impairing the borrowing power of the government by 
 State taxation, is the same whether that taxation be imposed upon 
 corporate franchises or upon the privilege created and regulated by 
 the statutes of inheritance. 
 
 The contention of the plaintiff in error that taxation of the 
 estates of decedents in any form however slight, is invalid, if 
 United States bonds are included in the appraisement, seems to be 
 unreasonable. Suppose a decedent's estate consisted wholly of 
 United States securities, could it reasonably be claimed that the 
 charges and expenses of administration, imposed under the laws 
 of the state, would not be payable out of the funds of the estate? 
 If the estate were a small one, such expenses might require the 
 application of all the federal securities. If the estate were a 
 large one, the expenses attendant upon administration would be 
 proportionately large, to be raised out of the Federal securities. It 
 is not sufficient to say that such expenses are in the nature of 
 statutory debts, and that the question of the exemption of United 
 States bonds cannot arise until after the debts of the estate shall 
 have been paid. For, after all, what is an inheritance tax but a 
 debt exacted by the State for protection afforded during the life 
 time of the decedent? It is often impracticable to secure from 
 living persons their fair share of contribution to maintain the 
 administration of the State, and such laws seem intended to en- 
 able to secure payment from the estate of the citizen when his 
 final account is settled with the State. Nor can it be readily sup- 
 posed that such obligations can be evaded or defeated by the par- 
 ticular form in which the property of the decedent was invested. 
 
 Upon the whole, we think that the decision of the courts below 
 was correct, and the judgment is therefore affirmed. 
 
 Mr. Justice WHITE dissented. 
 
 Mr. Justice PECKHAM took no part in the decision.
 
 POLLOCK V. FARMERS' LOAN & TRUST CO. 83 
 
 POLLOCK V. FARMERS' LOAX & TRUST CO. 
 
 Supreme Court of the United States. October, 1894. 
 157 United States 429. 
 
 i 
 Mr. Chief Justice FULLER, after stating the case, . . 
 
 delivered the opinion of the court : 
 The contention of the complaint is: 
 
 Third. That the law is invalid so far as imposing a tax upon 
 income received from state and municipal bonds. 
 
 The averment in the bill is that the defendant company owns 
 two millions of the municipal bonds of the city of New York, from 
 which it derives an annual income of $60,000, and that the directors 
 of the company intend to return and pay taxes on the income so 
 derived. 
 
 The Constitution contemplates the independent exercise by the 
 Xation and the State, severally, of their constitutional powers. 
 
 As the States cannot tax the powers, the operations, or the prop- 
 erty of the United States, nor the means which they employ to carry 
 their powers into execution, so it has been held that the United 
 States have no power under the Constitution to tax either the 
 instrumentalities or the property of a State. 
 
 A municipal corporation is the representative of the State and 
 one of the instrumentalities of the State government. It was long 
 ago determined that the property and revenues of municipal cor- 
 porations are not subjects of Federal taxation. Collector v. Day, 
 11 Wall. 113, 124; United States v. Railroad Company, 17 Wall. 
 322,332. In Collector v. Day, it was adjudged that Congress had 
 no power, even by an act taxing all incomes, to levy a tax upon the 
 salaries of judicial officers of a State, for reasons similar to those 
 on which it had been held in Dobbins v. Commissioners, 16 Peters 
 435, that a State could not tax the salaries of officers of the United 
 States. Mr. Justice Xelson, in delivering judgment, said: "The 
 general government, and the States, although both exist within 
 the same territorial limits, are separate and distinct sovereignties, 
 acting separately and independently of each other, within their 
 respective spheres. The former in its appropriate sphere is 
 -upreme; but the States within the limits of their powers not 
 granted, or, in the language of the tenth amendment, 'reserved/ are
 
 84 LIMITATIONS OF THE TAXING POWER. 
 
 as independent of the general government as that government 
 within its sphere is independent of the States." 
 
 This is quoted in Van Brocklin v. Tennessee, 117 U. S. 151, 
 178, and the opinion continues: "Applying the same principles, 
 this court, in United States v. Railroad Company, 17 Wall. 322, 
 held that a municipal corporation within a State could not be taxed 
 by the United States on the dividends or interest of stock or bonds 
 held by it in a railroad or canal company, because the municipal 
 corporation was a representative of the State, created by the State 
 to exercise a limited portion of its powers of government, and there- 
 fore its revenues, like those of the State itself, were not taxable by 
 the United States. The revenues thus adjudged to be exempt from 
 Federal taxation were not themselves appropriated to any specific 
 public use, nor derived from property held by the State, or by the 
 municipal corporation for any specific public use, but were part of 
 the general income of that corporation, held for the public use in 
 no other sense than all property and income, belonging to it in its 
 municipal character, must be so held. The reasons for exempting 
 all the property and income of a State, or of a municipal corpora- 
 tion, which is a political division of a State, from Federal taxation, 
 equally require the exemption of all the property and income of 
 the National government from State taxation." 
 
 In Mercantile Bank v. New York, 121 U. S. 138, 162, this court 
 said: "Bonds issued by the State of New York, or under its au- 
 thority by its public municipal bodies, are means for carrying on 
 the work of the government, and are not taxable even by the 
 United States, and it is not a part of the policy of the government 
 which issues them subject to taxation for its own purposes." 
 
 The question in Bonaparte v. Tax Court, 104 U. S. 592, was 
 whether the registered public debt of one State, exempt from tax- 
 ation by that State or actually taxed there, was taxable by another 
 State when owned by a citizen of the latter, and it was held that 
 there was no provision of the Constitution of the United States 
 which prohibited such taxation. The States had not covenanted 
 that this could not be done, whereas, under the fundamental law, 
 as to the power to borrow money, neither the United States on the 
 one hand, nor the States on the other, can interfere with that 
 power as possessed by each and an essential element of the sov- 
 ereignty of each. 
 
 The law under consideration provides "that nothing herein con- 
 tained shall apply to States, counties or municipalities." It i* 
 contended that although the property or revenues of the States or
 
 VAN BROCKLIN V. TENNESSEE. 85 
 
 their instrumentalities cannot be taxed, nevertheless the income de- 
 rived from State, county and municipal securities can be taxed. 
 But we think the same want of power to tax the property or rev- 
 enues of the States or their instrumentalities exists in relation of 
 a tax on the income from their securities, and for the same reason, 
 and that reason is given by Chief Justice Marshall in Weston \. 
 Charleston, 2 Pet. 449, 468, where he said: "The right to tax the 
 contract to any extent, when made, must operate upon the power 
 to borrow before it is exercised, and have a sensible influence on 
 the contract. The extent of this influence depends on the will of 
 a distinct government. To any extent, however inconsiderable, it 
 is a burthen on the operations of government. It may be carried 
 
 to an extent which shall arrest them entirely The 
 
 tax on government stock is thought by this court to be a tax on the 
 contract, a tax on the power to borrow money on the credit of 
 the United States, and consequently to be repugnant to the Con- 
 stitution." Applying this language to these municipal securities, 
 it is obvious that taxation on the interest therefrom would operate 
 on the power to borrow before it is exercised, and would have a 
 sensible influence on the contract, and that the tax in question is a 
 tax on the power of the States and their instrumentalities to borrow 
 money, and consequently repugnant to the Constitution. 
 
 5. Taxation of Government Property. 
 VAN BROCKLIN V. STATE OF TENNESSEE. 
 
 Supreme Court of the United States. March, 1886. 
 Ill U. S. 151. 
 
 Mr. Justice GRAY, after stating the case deliv- 
 ered the opinion of the court. 
 
 The question presented by this writ of error is whether lands in 
 the State of Tennessee, which, pursuant to acts of Congress for the 
 laying and collection of direct taxes, are sold, struck off and pur- 
 chased by the United States for the amount of the tax thereon, and 
 are afterwards sold by the United States for a larger sum, or re- 
 deemed by the former owner, are liable to be taxed, under author- 
 ity of the State, while so owned by -the United States. 
 
 The judgment of the Supreme Court of Tennessee rests upon the 
 position that these lands, although lawfully purchased by the
 
 86 LIMITATIONS OF THE TAXING POWER. 
 
 United States, at the time of being taxed under the laws of the 
 State, were not exempt from State taxation, because they had not 
 been expressly ceded by the State to the United States. 
 
 We are unable to reconcile this position with a just view of the 
 rights and powers conferred upon the national government by the 
 Constitution of the United States. 
 
 ...'.'.' . The attempt to use the taxing power of a State 
 on the means employed by the government of the Union, in pur- 
 suance of the Constitution, is itself an abuse, because it is the usur- 
 pation of a power which the people of a single State cannot -give. 
 The power to tax involves the right to destroy; the power to de- 
 stroy may defeat and render useless the power to create; and there 
 is a plain repugnance in conferring on one government a power 
 to control the constitutional measures of another, which other, with 
 respect to those very measures, is declared to be supreme over that 
 which exerts the control. The States have no power, by taxation or 
 otherwise, to retard, impede, burden, or in any manner control, the 
 operations of the constitutional laws enacted by Congress to carry 
 into execution the powers vested in the general government. 
 
 The United States do not and cannot hold property, ae a mon- 
 arch may, for private or personal purposes. All the property and 
 revenues of the United States must be held and applied, as all 
 taxes, duties, imposts and excises must be laid and collected, "to 
 pay the debts and provide for the common defence and general wel- 
 fare of the United States." Constitution, art. 1, sect. 8, cl. 1; 
 Dobbins v. Erie County Commissioners, 16 Pet. 435, 448. The 
 principal reason assigned in Buchanan v. Alexander, 4 How. 20, 
 for holding that money in the hands of a purser, due to seamen 
 in the navy for wages, could not be attached by their creditors in 
 a State court was, "The funds of the government are specifically 
 appropriated to certain national objects; and if such appropria- 
 tions may be diverted and defeated by State process or otherwise, 
 the functions of the government may be suspended." 
 
 The more thoroughly the proceedings by which the States be- 
 came members of the Union, either by joining in establishing the 
 Federal Constitution, or by admission under subsequent acts of 
 Congress, are examined, the more strongly they confirm the same 
 view. 
 
 It cannot be doubted that the provisions which speak of the
 
 VAN BROCKLIN V. TENNESSEE. 87 
 
 exemption of property of the United States from taxation, in the 
 various acts of Congress admitting States into the Union, are 
 equivalent to each other; and that, like the other provision, which 
 often accompanies them, that the State "shall not interfere with 
 the primary disposal of the soil by the United States,'' they are 
 but declaratory, and confer no new right or power upon the United 
 States. 
 
 The necessary exemption of all property of the 
 
 United States from State taxation has been recognized by the high- 
 est courts of Illinois, California and Kansas . . . . ; and by 
 those of Virginia, Connecticut, Iowa and Wisconsin. Western 
 Union Telegraph Co. v. Richmond, 26 Grattan 1, 30; Andrew v. 
 Auditor, 28 Grattan 115, 124; West Hartford v. Water Commis- 
 sioners, 44 Conn. 360, 368; Chicago, Rock Island & Pacific R. R. 
 v. Davenport, 51 Iowa 451, 454; Wisconsin Central R. R. v. Tay- 
 lor County, 52 Wis. 37, 51, 52. 
 
 The legislatures of most of the States have affirmed the same 
 principle, by inserting in their general tax acts an exemption of 
 property belonging to the United States. 
 
 In short, under a republican form of government, the whole 
 property of the State is owned and held by the State for public 
 uses, and is not taxable, unless the State which owns and holds it 
 for those uses clearly enacts that it shall share the burden of tax- 
 ation with other property within its jurisdiction. Whether the 
 property of one of the States of the Union is taxable under the 
 laws of that State depends upon the intention of that State as 
 manifested by those laws. But whether the property of the United 
 States shall be taxed under the laws of a State depends upon the 
 will of its owner, the United States, and no State can tax the 
 property of the United States without their consent. 
 
 The liability of the property of the Pacific Railroad Companies to 
 state taxation has been upheld, on the distinction stated in M'Cul- 
 lough v. Maryland, 4 Wheat. 436, and in Osoorn v. Bank of the 
 United States, 9 Wheat. 867, already cited, and reasserted in Na- 
 tional Bank v. Commonwealth, 9 Wall. 353, 362, namely, that 
 although the railroad corporations were agents of the United States, 
 the property taxed was not the property of the United States, but 
 the property of the agents, and a State might tax the prop- 
 erty of the agents provided it did not tax the means employed by
 
 88 LIMITATIONS OF THE TAXING POWER. 
 
 the national government. Thomson v. Pacific Railroad, 9 Wall. 
 579; Railroad Co. v. Peniston, 18 Wall. 5. In Railroad Co. v. 
 Peniston, Mr. Justice Strong, who delivered the principal opinion, 
 dwelt upon the consideration, that the property taxed was not 
 owned by the United States, as essential to support the validity of 
 the tax. 18 Wall. 32, 34. And Mr. Justice Bradley, in a dis- 
 senting opinion in which Mr. Justice Field joined, said : "Thi. 1 
 states cannot tax the powers, the operations, or the property of the 
 United States, nor the means which it employs to carry its powers 
 into execution.'' 18 Wall. 41. 
 
 The cases in which this court has held that the United States 
 have no power under the Constitution to tax either the instrumen- 
 talities or the property of a State have a direct and important bear- 
 ing upon the question before us. 
 
 The United States acquired the title to all the land now in ques- 
 tion under the express authority of acts of Congress, and by pro- 
 ceedings the validity of which is clearly established by a series of 
 decisions of this court. Acts of June 7, 1862, ch. 98, 7, 12 Stat. 
 423; June 8, 1872, ch. 337, 4, 17 Stat. 331; and February 8, 
 1875, ch. 36, 26, 18 Stat. 313; Bennett v. Hunter, 9 Wall. 326; 
 De Treville v. Smalls, 98, U. S. 517; Keely v. Sanders, 99 U. S. 
 441; United States v. Taylor, 104 Ul S. 216; United States v. 
 Lawton, 110 U. S. 146. The imposition of direct taxes upon the 
 land by those acts of Congress was a lawful exercise of the power 
 conferred by the Constitution to lay and collect taxes. The pro- 
 visions authorizing the United States to sell the land for non- 
 payment of the taxes assessed thereon, and to purchase the land for 
 the amount of the taxes if no one would bid a higher price, were 
 necessary and proper means for carrying into effect the power to lay 
 and collect the taxes; and so were the provisions authorizing the 
 United States afterwards to sell the land, to apply the proceeds to 
 the payment of taxes, and to hold any surplus for the benefit of 
 the former owner. While the United States owned the land struck 
 off to them for the amount of the taxes because no one would pay 
 more for it, and until it was sold by the United States for a 
 greater price, or was redeemed by the former owner, the United 
 States held the entire title as security for the payment of the 
 taxes; and it could not be known how much, if anything, beyond 
 the amount of the taxes, the land was worth. To allow land, law- 
 fully held by the United States as security for the payment of taxes 
 assessed by and due to them, to be assessed and sold for State
 
 UNITED STATES V. B. AND 0. R. R. CO. 89 
 
 taxes, would tend to create a conflict between the officers of the 
 two governments, to deprive the United States of a title lawful!}' 
 acquired under express acts of Congress, and to defeat the exer- 
 cise of the constitutional power to lay and collect taxes, to pay the 
 debts and provide for the common defence and general welfare of 
 the United States. 
 
 The question whether the taxes laid under authority of the 
 State can be collected in this suit depends upon the question 
 whether they were lawfully assessed. But all the assessments were 
 unlawful, because made while the land was owned by the United 
 States. The assessments, being unlawful, created no lien upon the 
 land. Those taxes, therefore.' cannot be collected, even since the 
 plaintiffs in error have redeemed or purchased the land from the 
 United States. 
 
 Whether the Supreme court of Tennessee rightly construed the 
 provisions of the Constitution and statutes of the State as not ex- 
 empting from taxation lands belonging to the United States, ex- 
 clusive jurisdiction over which had not been ceded by the State, is 
 quite immaterial, because, for the reasons and upon the authorities 
 above stated, this court is of opinion that neither the people nor 
 the legislature of Tennessee had power, by constitution or statute, 
 to tax the land in question, so long as the title remained in the 
 United States. 
 
 States may impose a tax on a bequest to the United States. United States 
 v. Perkins, 163 U. S. 625. 
 
 UNITED STATES V. BALTIMORE AND OHIO RAILROAD 
 
 COMPANY. 
 
 Supreme Court of the United States. December, 1872. 
 17 Wallace, 822. 
 
 The legislature of Maryland gave to the city of Baltimore (then 
 desirous of aiding the Baltimore and Ohio Railroad Company in 
 the construction of its road, which the city councils of Baltimore 
 conceived would, if made, greatly benefit the city), authority to 
 issue and sell its bonds to the extent of $5,000,000, payable in 
 1890; and to lend the proceeds to the railroad company, less 10 
 per cent, to be reserved as a sinking fund to pay the principal of 
 the loan at its maturity. This the city- did, the railroad company 
 in turn giving to it a mortgage on all its road, revenue and fran-
 
 90 LIMITATIONS OF THE TAXING POWER. 
 
 chises, to secure the payment of the bonds which the city had 
 issued, and the interest which it had bound itself to pay. 
 
 After the passage of the internal revenue laws, 
 
 the government claimed payment from the company of a tax of 5 
 per cent, which the collectors of the Federal revenue alleged that 
 
 under the plain language of the 122nd section, the 
 
 company was bound to withhold from the city and pay to the 
 United States. The company refused so to pay the 5 per cent to 
 the government on the ground that the tax was not a tax laid on it, 
 the company, but one laid on their creditor, the city of Baltimore, 
 and that that city, being a municipal corporation, could not have 
 its revenues taxed by the Federal government. 
 
 The United States accordingly sued the company, in the court 
 below, in assumpsit. 
 
 Mr. Justice HUNT delivered the opinion of the court. 
 
 The defendants insist, firstly, that the section in question does 
 not lay a tax upon the corporations therein named, and by whom 
 the tax is payable, upon their own account, but uses them as .1 
 convenient means of collecting the tax from the creditor, or stock- 
 holder, upon whom the tax is really laid. They insist as a conse- 
 quence, secondly, that the present is a tax upon the revenues of the 
 city of Baltimore; and, thirdly, that it is not within the power of 
 Congress to tax the income or property of a municipal corporation. 
 
 In the case before us, this question controls its decision. If the 
 tax were upon the railroad, there is no defence. It must be paid. 
 But we hold that the tax imposed by the 122d section is in sub- 
 stance and in law a tax upon the income of the creditor or stock- 
 holder, and not a tax upon the corporation. 
 
 The creditor here is the city of Baltimore, and the question then 
 arises whether this tax can be collected from the revenues of that 
 municipal corporation. 
 
 There is no dispute about the general rules of law applicable to 
 this subject. The power of taxation by the Federal government 
 upon the subjects and in the manner prescribed by the act we are 
 considering, is undoubted. There are, however, certain depart- 
 ments which are excepted from the general power. The right of 
 the States to administer their own affairs through their legislative, 
 executive and judicial departments, in their own manner, through 
 their own agencies, is conceded by the uniform decisions of this 
 court and by the practice of the Federal government from its or-
 
 UNITED STATES V. B. AND 0. E. R. CO. 91 
 
 ganization. This carries with it an exemption of those agencies and 
 instruments from the taxing power of the Federal government. If 
 they may be taxed lightly, they may be taxed heavily; if justly, 
 oppressively. Their operation may be impeded and may be de- 
 stroyed, if any interference is permitted. Hence, the beginning of 
 such taxation is not allowed on the one side, is not claimed on the 
 other. 
 
 A municipal corporation like the city of Baltimore, is a repre- 
 sentative not only of the state, but is a portion of its governmental 
 power. It is one of its creatures, made for a specific purpose, to 
 exercise within a limited sphere the powers of the state. 
 
 Let us look at the facts of the case before us. The city of Balti- 
 more, with a view to its commercial prosperity, was desirous of aid- 
 ing in the construction of a railroad, by which the commerce and 
 business of the Western States would be brought to that city. For 
 this purpose it was authorized by the legislature to issue its corpor- 
 ate bonds for $5,000,000, on which it was to obtain the money. 
 The proceeds of these bonds, reserving 10 per cent as a sinking 
 fund, were to be paid to the railroad company. To secure the city 
 against loss and to provide for the payment of interest on the bonds 
 of the city as it should, from time to time, mature, and of the prin- 
 cipal when payable, the railroad company were to execute a mort- 
 gage to the city upon its road and franchise and revenues. All this 
 was done as agreed upon. The interest secured by this mortgage, 
 has, from time to time, been paid by the railroad company to the 
 city, and it is a tax (under the 122d section before referred to) 
 upon the interest thus paid, that the plaintiff now seeks to recover. 
 
 That the State possessed the power to confer this authority upon 
 the city we see no reason to doubt. 
 
 Was it exercised for the benefit of the municipality, that is, in 
 the course of its municipal business or duties? In other words, 
 was it acting in its capacity of an agent of the State, delegated to 
 exercise certain powers for the benefit of the municipality called 
 the city of Baltimore? Did it act as an auxiliary servant and trus- 
 tee of the supreme legislative power? The legislature and the au- 
 thorities of the city of Baltimore decided that the investment of 
 $5,000,000 in the aid of the construction of a railroad, which should 
 bring to that city the unbounded harvests of the West, would be a 
 measure for the benefit of the inhabitants of Baltimore and of the 
 municipality. This vast business was a prize for which the States
 
 92 LIMITATIONS OF THE TAXING POWER. 
 
 north of Maryland were contending. Should it endeavor by the 
 expenditure of this money or this credit to bring this vast business 
 into its own State, and make its commercial metropolis great and 
 prosperous, or should it refuse to incur hazard, allow other States 
 to absorb this commerce, and Baltimore to fall into an inferior posi- 
 tion? This was a question for the decision of the city under the 
 authority of the State. It was a question to be decided solely with 
 reference to public and municipal interests. The city had authority 
 to spend its money in opening squares, in widening streets, in deep- 
 ening rivers, in building common roads or railways. The State 
 could do these things by the direct act of its legislature, or it could" 
 empower the city to do them. It could act directly or through the 
 agency of others. It is not a question to be here discussed, whether 
 the action proposed would in the end result to the benefit of the 
 city. It might be wise or it might prove otherwise. The city was 
 to reap the fruits in the advanced prosperity of all its material in- 
 terests, if successful. If unsuccessful, the city was to bear the load 
 of debt and taxation, which would surely follow. The city had the 
 power given it by the legislature to decide the question. It was 
 within the scope of its municipal powers. 
 
 We admit the proposition of the counsel, that the revenue must 
 be municipal in its nature to entitle it to the exemption claimed. 
 Thus, if an individual were to make the city of Baltimore his agent 
 and trustee to receive funds, and to distribute them in aid of 
 science, literature, or the fine arts, or even for the relief of the des- 
 titute and infirm, it is quite possible that such revenues would be 
 subject to taxation. The corporation would therein depart from its 
 municipal character, and assume the position of a private trustee. 
 It would occupy a place which an individual could occupy with 
 equal propriety. It would not in that action be an auxiliary or 
 servant of the State, hut of the individual creating the trust. There 
 is nothing of a governmental character in such a position. It is not 
 necessary, however, to speculate upon hypothetical cases. We are 
 clear in the opinion that the present transaction is within the range 
 of the municipal duties of the city, and that the tax cannot be col- 
 lected. 
 
 Mr. Justice CLIFFORD and Mr. Justice MILLER dissenting.
 
 BOBBINS V. SHELBY COUNTY. 93 
 
 II. TAXES ON COMMERCE. 
 
 1. State Taxation of Interstate and Foreign Commerce. 
 BOBBINS V. SHELBY COUNTY TAXING DISTRICT. 
 
 Supreme Court of the United States. March, 1887. 
 120 United States, 489. 
 
 This was an information in a state court of Tennessee, against 
 the plaintiff in error, for doing business in the Taxing District of 
 Shelby County in that State, as a drummer on behalf of a firm 
 doing business in Cincinnati, Ohio, without a license as required by 
 the provision of the statute of Tennessee, which is set out in the 
 opinion of the court. The defendant was found guilty, and this 
 judgment was affirmed by the Supreme Court of the state on ap- 
 peal. 13 Lea 303. The defendant sued out this writ of error. The 
 cause was submitted at the last term of court. The court, on the 
 8th of March, 1886, ordered it argued; and the argument was heard 
 accordingly at this term. The case is stated in the opinion of the 
 court. 
 Mr. Justice BRADLEY delivered the opinion of the court. 
 
 This case originated in the following manner: Sabine Robbing, 
 the plaintiff in error, in February, 1884, was engaged at the city of 
 Memphis, in the State of Tennessee, in soliciting the sales of goods 
 for the firm of Rose, Robbing & Co., of Cincinnati, in the State of 
 Ohio, dealers in paper, and other articles of stationery, .and exhib- 
 ited samples for the purpose of effecting such sales, an employ- 
 ment usually denominated as that of a "drummer." There was in 
 force at that time a statute of Tennessee, relating to the subject oi* 
 taxation in the Taxing Districts of the State, applicable, however, 
 only to the Taxing Districts of Shelby County, (formerly the city 
 of Memphis,) by which it was enacted, amongst other things, that 
 "'All drummers, and all persons not having a regular licensed house 
 of business in the Taxing District, offering for sale or selling goods, 
 wares, or merchandise therein, by sample, shall be required to pay 
 to the county trustee the sum of $10 per week, or $25 per month, 
 for such privilege, and no license shall be issued for a longer period 
 than three months." Stats. Tennessee, 1881, c. 96, 16. 
 
 The business of selling by sample and nearly sixty other occupa- 
 tions had been by law declared to be privileges, and were taxed as 
 such, and it was made a misdemeanor, punishable by a fine of not 
 less than five, nor more than fifty dollars, to exercise any of such
 
 94 LIMITATIONS OF THE TAXING POWER. 
 
 occupations without having first paid the tax or obtained the license 
 required therefor. 
 
 Under this law, Eobbins, who had not paid the tax nor taken a 
 license, was prosecuted, convicted and sentenced to pay a fine of ten 
 dollars, together with the state and county tax, and costs; and on 
 appeal to the Supreme Court of the State, the judgment was 
 affirmed. This writ of error, is brought to review the judgment of 
 the Supreme Court, on the ground that the law imposing the tax 
 was repugnant to that clause of the Constitution of the United 
 States which declares that Congress shall have power to regulate 
 commerce among the several states. 
 
 The principal question argued before the Supreme Court of Ten- 
 nessee was, as to the constitutionality of the act which imposed the 
 tax on drummers; and the court decided that it was constitutional 
 and valid. 
 
 That is the question before us, and it is one of great importance 
 to the people of the United States, both as it represents their busi- 
 ness interests and their constitutional rights. It is presented in a 
 nutshell, and does not, at this day, require for its solution any 
 great elaboration of argument or review of authorities. Certain 
 principles have been already established by the decisions of this 
 court which will conduct us to a satisfactory decision. Among those 
 principles are the following: 
 
 1. The Constitution of the United States having given to Con- 
 gress the power to regulate commerce, not only with foreign nations, 
 but among the several States, that power is necessarily exclusive 
 whenever the subjects of it are national in their character, or admit 
 of one uniform system, or plan of regulation. This was decided in 
 the case of Cooky v. Board of Wardens of the Port of Philadelphia, 
 12 How. 299, 319, and was virtually involved in the case of Gib- 
 bons v. Ogden, 9 Wheat. 1, and has been confirmed in many subse- 
 quent cases, amongst others, in Brown v. Maryland, 12 Wheat. 419; 
 The Passenger Cases, 7 How. 283; Crandall v. Nevada, 6 Wall. 35, 
 42; Ward v. Maryland, 12 Wall. 418, 430; State Freight Tax Cases, 
 15 Wall. 232, 279; Henderson v. Mayor of New York, 92 U. S. 
 259, 272; Railroad Co. v. Huscn, 95 U. S. 465, 469; Mobile v. 
 Kimball, 102 U. S. 691, 697; Gloucester Ferry Co. v. Pennsylvania, 
 114 U. S. 196, 203; Wabash, &c., Railway Co. v. Illinois, 118 U. S. 
 557. 
 
 2. Another established doctrine of this court is, that where th n 
 power of Congress to regulate i? exclusive the failure of Congress to
 
 BOBBINS V. SHELBY COUNTY. 95 
 
 make express regulations indicates its will that the subject shall be 
 left free from any restrictions or impositions; and any regulation 
 of the subject by the States, except in matters of local concern only, 
 as hereafter mentioned, is repugnant to such freedom. This was 
 held by Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 222, 
 by Mr. Justice Grier in the Passenger Cases, 7 How. 283, 462, and 
 has been affirmed in subsequent cases. State Freight Tax Cases, 15 
 Wall. 232, 279; Railroad Co. \. Husen, 95 U. S. 465, 469; Welton 
 v. Missouri, 91 U. S. 275, 282 ; Mobile v. Kimball, 102 U. S. 691, 
 697; Brown v. Houston, 114 U. S. 622, 631; Walling v. Michigan, 
 116 U. S. 446, 455; Pickard v. Pullman Southern Car Co., 117 U. 
 S. 34; Wabash, &c., Railway Co. v. Illinois, 118 U. S. 557. 
 
 3. It is also an established principle, as already indicated, that 
 the only way in which commerce between the States can be legiti- 
 mately affected by State laws, is when, by virtue of its police power, 
 and its jurisdiction over persons and property within its limits, a 
 State provides for the security of the lives, limbs, health, and com- 
 fort of persons and the protection of property; or when it does 
 those things which may otherwise incidentally affect commerce, such 
 as the establishment and regulation of highways, canals, railroads, 
 wharves, ferries, and other commercial facilities; the passage of in- 
 spection laws to secure the due quality and measure of products 
 and commodities; the passage of laws to regulate or restrict the 
 sale of articles deemed injurious to the health or morals of the com- 
 munity; the imposition of taxes upon persons residing within the 
 State or belonging to its population, and upon avocations and em- 
 ployments pursued therein, not directly connected with foreign or 
 interstate commerce or with some other employment or business ex- 
 ercised under authority of the Constitution and laws of the United 
 States; and the imposition of taxes upon all property within the 
 State, mingled with and forming part of the great mass of property 
 therein. But in making such internal regulations a State cannot 
 impose taxes upon persons passing through the State, or coming 
 into it merely for a temporary purpose, especially if connected with 
 interstate or foreign commerce; nor can it impose such taxes upon 
 property imported into the State from abroad, or from another 
 State, and not yet become part of the common mass of property 
 therein; and no discrimination can be made, by any such regula- 
 tions, adversely to the persons or property of other States; and ho 
 regulations can be made directly affecting interstate commerce. Any 
 taxation or regulation of the latter character would be an unauthor- 
 ized interference with the power given to Congress over the subject.
 
 96 LIMITATIONS OF THE TAXING POWER. 
 
 For authorities on this last head it is only necessary to refer to 
 those already cited. 
 
 In a word it may be said, that in the matter of interstate com- 
 merce the United States are but one country, and are and -must be 
 subject to one system of regulations, and not to a multitude of sys- 
 tems. The doctrine of the freedom of that commerce, except as 
 regulated by Congress, is so firmly established that it is unnecessary 
 to enlarge upon the subject. 
 
 In view of these fundamental principles, which are to govern our 
 decision, we may approach the question submitted to us in the pres- 
 ent case, and inquire whether it is competent for a State to levy a 
 tax or impose any other restriction upon the citizens or inhabitants 
 of other States, for selling or seeking to sell their goods in such 
 State before they are introduced therein. Do not such restrictions 
 affect the very foundation of interstate trade? How is a manufac- 
 turer, or a merchant, of one State, to sell his goods in another State, 
 without, in some way, obtaining orders therefor? Must he be com- 
 pelled to send them at a venture, without knowing whether there is 
 any demand for them? 
 
 The truth is, that, in numberless instances, the most feasible, if 
 not the only practicable, way for the merchant or manufacturer to 
 obtain orders in other States is to obtain them by personal applica- 
 tion, either by himself, or by some one employed by him for that 
 purpose; and in many branches of business he must necessarily ex- 
 hibit samples for the purpose of determining the kind and quality 
 of the goods he proposes to sell, or which the other party desires to 
 purchase. But the right of taxation, if it exists at all, is not con- 
 fined to selling by sample. It embraces every act of sale, whether 
 by word of mouth only, or by exhibition of samples. If the right 
 exists, any New York or Chicago merchant visiting New Orleans or 
 Jacksonville, for pleasure or for his health, and casually taking an 
 order for goods to be sent from his warehouse, could be made lia- 
 ble to pay a tax for so doing, or be convicted of a misdemeanor for 
 not having taken out a license. The right to tax would apply 
 equally as well to the principal as to his agent, and to a single act 
 of sale as to a hundred acts. 
 
 But it will be said that a denial of this power of taxation will 
 interfere with the right of the State to tax business pursuits and 
 callings carried on within its limits, and its rights to require 
 licenses for carrying on those which are declared to be privileges. 
 This may be true to a certain extent; but only in those cases in
 
 ROBBIES V. SHELBY COUNTY. 97 
 
 which the states themselves, as well as individual citizens, are sub- 
 ject to the restraints of the higher law of the Constitution. And 
 this interference will be very limited in its operation. It will only 
 prevent the levy of a tax, or the requirement of a license, for mak- 
 ing negotiations in the conduct of interstate commerce; and it may 
 well be asked where the State gets authority for imposing burdens 
 on that branch of business any more than for imposing a tax on 
 the business of importing from foreign countries, or even on that' 
 of postmaster or United States marshal. The mere calling the 
 business of a drummer a privilege cannot make it so. Can the 
 State legislature make it a Tennessee privilege to carry on the busi- 
 ness of importing goods from foreign countries? If not, has it any 
 better right to make it a State privilege to carry on interstate com- 
 merce? It seems to be forgotten, in argument, that the people of 
 this country are citizens of the United States, as well as of the in- 
 dividual States, and that they have some rights under the Constitu- 
 tion and laws of the former independent of the latter, and free 
 from any interference or restraint from them. 
 
 To deny to the State the power to lay the tax, or require the 
 license in question, will not, in any perceptible degree, diminish its 
 resources or its just power of taxation. It is very true, that if the 
 goods when sold were in the State, and part of its general mass of 
 property, they would be liable to taxation; but when brought into 
 the State in consequence of the sale they will be equally liable ; so 
 that, in the end, the State will derive just as much revenue from 
 them as if they were there before the sale. As soon as the goods 
 are in the State and become part of its general mass of property, 
 they will become liable to be taxed in the same manner as other 
 property of similar character, as was distinctly held by this court 
 in the case of Brown v. Houston, 114 U. S. 622. When goods are 
 sent from one State to another for sale, or, in consequence of a 
 sale, they become part of its general property, and amenable to its 
 laws; provided that no discrimination be made against them as 
 goods from another State, and that they be not taxed by reason of 
 being brought from another State, but only taxed in the usual way 
 as other goods are. Brown v. Houston, qua supra', Machine Co. v. 
 Gage, 100 U. S. 676. But to tax the sale of such goods, or the 
 offer to sell them, before they are brought into the State, is a very 
 different thing and seems to us clearly a tax on interstate commerce 
 itself. 
 
 It is strongly urged, as if it were a material point in the case, 
 
 that no discrimination is made between domestic and foreign drum- 
 
 7
 
 98 LIMITATIONS OF THE TAXING POWER. 
 
 mers those of Tennessee and those of other States; that all are 
 taxed alike. But that does not meet the difficulty. Interstate com- 
 merce cannot be taxed at all, even though the same amount of tax 
 should be laid on domestic commerce, or that which is carried on 
 solely within the State. This was decided in the case of TJie State 
 Freight Tax, 15 Wall. 232. The negotiation of goods which are in 
 another State, for the purpose of introducing them into the State 
 in which the negotiation is made, is interstate commerce. A New 
 Orleans merchant cannot be taxed there for ordering goods from 
 London or New York, because, in the one case, it is an act of for- 
 eign, and, in the other, of interstate commerce, both of which are 
 subject to regulation by Congress alone. 
 
 To say that the tax, if invalid as against drummers from other 
 States, operates as a discrimination against the drummers of Ten- 
 nessee, against whom it is conceded to be valid, is no argument; 
 because, the State is not bound to tax its own drummers; and if it 
 does so whilst having no power to tax those of other States, it acts 
 of its own free will, and is itself the author of such discrimination. 
 As before said, the State may tax its own internal commerce; but 
 that does not give it any right to tax interstate commerce. 
 
 The judgment of the Supreme Court of Tennessee is reversed, 
 and the plaintiff in error must be discharged. 
 
 Mr. Chief Justice WAITE with whom concurred Mr. Justice 
 FIELD and Mr. Justice GRAY, dissenting. 
 
 CASE OF THE STATE FREIGHT TAX. 
 
 Supreme Court of the United States. December, 1872. 
 15 Wallace 232. 
 
 Mr. Justice STRONG delivered the opinion of the court. 
 
 We are called upon, in this case, to review a judgment of the 
 Supreme Court of Pennsylvania, affirming the validity of a statute 
 of the State, which the plaintiffs in error allege to be repugnant to 
 the Federal Constitution. 
 
 The case presents the question whether the statute in question, 
 so far as it imposes a tax upon freight taken up within the State 
 and carried out of it, or taken up outside the State and delivered 
 within it, or, in different words, upon all freight other than that
 
 CASE OF STATE FREIGHT TAX. 99 
 
 taken up and delivered within the State, is not repugnant to the 
 provision of the Constitution of the United States which ordains 
 that "Congress shall have power to regulate commerce with foreign 
 nations and among the several States," or in conflict with the pro- 
 vision that "no State shall, without the consent of Congress, lay 
 any imposts or duties on imports or exports, except what may be 
 absolutely necessary for executing its inspection laws." 
 
 Before proceeding, however, to a consideration of the direct ques- 
 tion whether the statute is in direct conflict with any provision of 
 the Constitution of the United States, it is necessary to have a 
 clear apprehension of the subject and the nature of the tax im- 
 posed by it. It has repeatedly been held that the constitutionality, 
 or unconstitutionality of a State tax is to be determined, not by 
 the form or agency through which it is to be collected, but by the 
 subject upon which the burden is laid. 
 
 Upon what, then is the tax imposed by the act of August 25th, 
 1864, to be considered as laid? Where does the substantial burden 
 rest? Very plainly it was not intended to be, nor is it in fact, 
 a tax upon the franchise of the carrying companies, or upon their 
 property, or upon their business measured by the number of tons 
 of freight carried. On the contrary it is expressly laid upon the 
 freight carried. The companies are required to pay to the State 
 treasurer for the use of the Commonwealth "on each two thousand 
 pounds of freight so carried," a tax at the specified rates. And this 
 tax is not proportioned to the business done in transportation. It 
 is the same whether the freight be moved one mile or three hun- 
 dred. If freight be put upon a road and carried at all, tax is to 
 be paid upon it, the amount of the tax being determined by the 
 character of the freight. And when it is observed that the act pro- 
 vides "where the same freight shall be carried over and upon dif- 
 ferent but continuous lines, said freight shall be chargeable with 
 tax as if it had been carried upon one line, and the whole tax shall 
 be paid by such one of said companies as the State treasurer may 
 select and notify thereof," no room is left for doubt. This provis- 
 ion demonstrates that the tax has no reference to the business of 
 the companies. In the case of connected lines thousands of tons 
 may be carried over the line of one company without any liability of 
 that company to pay the tax. The State treasurer is to de- 
 cide which of several shall pay the whole. 
 
 Considering it, then, as manifest that the tax demanded by the
 
 100 LIMITATIONS OF THE TAXING POWER. 
 
 act is imposed, not upon the company, but upon the freight carried, 
 and because carried, we proceed to inquire whether, so far as it 
 affects commodities transported through the State, or from points 
 without the State to points within it, or from points within the 
 State to points without it, the act is a regulation of interstate com- 
 merce. Beyond all question the transportation of freight, or of the 
 subjects of commerce, for the purpose of exchange or sale, is a con- 
 stituent of commerce itself. This has never been doubted, and prob- 
 ably the transportation of articles of trade from one State to an- 
 other was the prominent idea in the minds of the framers of the 
 Constitution, when to Congress was committed the power to regu- 
 late commerce among the several States. A power to prevent em- 
 barrassing restrictions by any State was the thing desired. The 
 power was given by the same words and in the same clause 
 by which was conferred power to regulate commerce with foreign 
 nations. It would be absurd to suppose that the transmission of tbe 
 subjects of trade from the State to the buyer, or from the place of 
 production to the market, was not contemplated, for without that 
 there could be no consummated trade either with foreign nations or 
 among the States. In his work on the Constitution ( 1057), 
 Judge Story asserts that the sense in which the word commerce is 
 used in that instrument includes not only traffic, but intercourse 
 and navigation. And in the Passenger Cases (7 Howard, 416) it 
 was said : "Commerce consists in selling the superfluity, in pur- 
 chasing articles of necessity, as well productions as manufactures, in 
 buying from one nation and selling to another, or in transporting 
 the merchandise from the seller to the buyer to gain the freight." 
 Nor doe> it make any difference whether this interchange of com- 
 modities is by land or by water. In either case the bringing of the 
 goods from the seller to the buyer is commerce. Among the States 
 it must have been principally by land when the Constitution 
 was adopted. 
 
 Then, why is not a tax upon freight transported from State to 
 State a regulation of interstate transportation, and, therefore, a reg- 
 ulation of commerce among the States? Is it not prescribing a rule 
 for the transporter, by which he is to be controlled in bringing the 
 subjects of commerce into the State and in taking them out? The 
 present case is the best possible illustration. The Legislature of 
 Pennsylvania has in effect declared that every ton of freight taken 
 up within the State and carried out, or taken up in other States 
 and brought within her limits, shall pay a specified tax. The pay- 
 ment of that tax is a condition, upon which is made dependent the
 
 CASE OF STATE FREIGHT TAX. 101 
 
 prosecution of this branch of commerce, and as there is no limit 
 to the rate of taxation she may impose, if she can tax at all, it is 
 obvious the condition may be made so onerous that an interchange 
 of commodities with other States would be rendered impossible. 
 The same power that may impose a tax of two cents per ton upon 
 coal carried out of the State, may impose one of five dollars. Such 
 an imposition, whether large or small, is a restraint of the privilege 
 or right to have the subjects of commerce pass freely from one State 
 to another without being obstructed by the intervention of State 
 lines. It would hardly be maintained, we think, that had the State 
 established custom-houses on her borders, wherever a railroad or 
 canal comes to the State line, and demanded at these houses a duty 
 for allowing merchandise to enter or leave the State upon one of 
 those railroads or canals, such an imposition would not have been 
 a regulation of commerce with her sister States. Yet it is difficult 
 to see any substantial difference between the supposed case and the 
 one we have in hand. The goods of no citizen of New York, New 
 Jersey, Ohio, or of any other State, may be placed upon a canal, 
 railroad or steamboat within the State for transportation any dis- 
 tance, either into or out of the State, without being subjected to the 
 burden. Xor can it make any difference that the legislative pur- 
 pose was to raise money for the support of the State government, 
 and not to regulate transportation. It is not the purpose of the law, 
 but its effect, which we are now considering. Nor is it at all mate- 
 rial that the tax is levied upon all freight, as well that which is 
 wholly internal as that embarked in interstate trade. We are not 
 at this moment inquiring further than whether taxing goods car- 
 ried because they are carried is a regulation of carriage. The State 
 may tax its internal commerce, but if an act to tax interstate or for- 
 eign commerce is unconstitutional, it is not cured by including in its 
 provisions subjects within the domain of the State. Nor is a rule 
 prescribed for carriage of goods through, out of, or into a State any 
 the less a regulation of transportation, because the same rule may 
 be applied to carriage which is wholly internal. Doubtless a State 
 may regulate its internal commerce as it pleases. If a State chooses 
 to exact conditions for allowing the passage or carriage of persons 
 or freight through it into another State, the nature of the exaction 
 is not changed by adding to it similar conditions for allowing trans- 
 portation wholly within the State. 
 
 If, then, this is a tax upon freight carried between States, and a 
 tax because of its transportation, and if such a tax is in effect a reg-
 
 102 LIMITATION'S OF THE TAXING POWER. 
 
 illation of interstate commerce, the conclusion seems to be inevitable 
 that it is in conflict with the Constitution of the United States. It 
 is not necessary to the present case to go into the much debated 
 question whether the power given to Congress by the Constitution 
 to regulate commerce among the States is exclusive. 
 
 However this may be, the rule has been asserted with great clear- 
 ness, that whenever the subjects over which the power to regulate 
 commerce is asserted are in their nature nationa 1 or admit of one 
 uniform system, or plan of regulation, they may justly be said to be 
 of such a nature as to require exclusive legislation by Congress. 
 (Cooley v. Port Wardens, 12 Howard 299; Oilman v. Philadelphia, 
 supra', Crandall v. The State of Nevada, 6 Wallace 42.) 
 
 Surely transportation of passengers or merchandise through a 
 State, or from one State to another, is of this nature. It is ol 
 national importance that over that subject there should be but one 
 regulating power, for if one State can directly tax persons or prop- 
 erty passing through it, or tax them indirectly by levying a tax upon 
 their transportation, every other may, and thus commercial inter- 
 course between States remote from each other may be destroyed. 
 The produce of Western States may thus be effectually excluded 
 from Eastern markets, for though it misrht bear the imposition of a 
 single tax it would be crushed under the load of many. It was to 
 guard against the possibility of such commercial embarrassment, no 
 doubt, that the power of regulating commerce among the States was 
 conferred" upon the federal government. 
 
 In Almy v. The State of California (24 How. 169), it was held 
 by this court that a law of the State, imposing a tax upon bills ot 
 lading for gold or silver transported from that State to any port or 
 place without the State, was substantially a tax upon the transpor- 
 tation itself, and was therefore unconstitutional. True, the decision 
 #as rested on the ground that it was a tax upon exports, and sub- 
 sequently, in Woodruff v. Parham (8 Wall. 123), the court deniecf 
 the correctness of the reasons given for the decision; but they said 
 at the same time the case was well decided for another reason, viz., 
 that such a tax was a regulation of commerce a tax imposed upon 
 the transportation of goods from one State to another, over the high 
 seas, in conflict with that freedom of transit of goods and persons 
 between one State and another, which is wichin the rule laid down 
 in Crandall v. Nevada (6 Wall. 35), and with the authority of Con- 
 gress to regulate commerce among the States. 
 
 In Crandall v. The State of Nevada, where it appeared that the
 
 CASE OF STATE FEEIGHT TAX. 103 
 
 legislature of the State had enacted that there should "be levied and 
 collected a capitation tax of one dollar upon every person leaving 
 the State by any railroad, stage-coach or other vehicle engaged or 
 employed in the business of transporting passengers for hire/' and 
 required the proprietors, owners, and corporations so engaged to 
 make monthly reports of the number of persons carried, and to pay 
 the tax, it was ruled that though required to be paid by the carriers, 
 the tax was a tax upon passengers, for the privilege of being carried 
 out of the State, and not a tax on the business of carriers. For 
 that reason it was held that the law imposing it was invalid, as in 
 conflict with the Constitution of the United States. A .majority of 
 the court, it is true, declined to rest the decision upon the ground 
 that the tax was a regulation of interstate commerce, and therefore 
 beyond the power of the State to impose, but all the judges agreed 
 that the State law was unconstitutional and void. The Chief Just- 
 ice and Mr. Justice Clifford thought the judgment should have been 
 placed exclusively on the ground that the act of the State legislature 
 was inconsistent with the power conferred upon Congress to regu- 
 late commerce among the several States, and it does not appear that 
 the other judges held that it was not thus inconsistent. In any 
 view of the case, however, it decides that a State cannot tax persons 
 for passing through or out of it. Interstate transportation of pas- 
 sengers is beyond the reach of the State legislature. And if State 
 taxation of persons passing from one State to another, or a State 
 tax upon interstate transportation of passengers is unconstitutional 
 a fortiori, if possible, is a State tax upon the carriage of merchand- 
 ise from State to State, in conflict with the Federal Constitution. 
 Merchandise is the subject of commerce. Transportation is essen- 
 tial to commerce; and every burden laid upon it is pro tanto a re- 
 striction. Whatever, therefore, may be the true doctrine respecting 
 the exclusiveness of the power vested in Congress to regulate com- 
 merce among the States, we regard it as established that no State 
 can impose a tax upon freight transportation from State to State, 
 or upon the transporter because of such transportation. 
 
 But while holding this, we recognize fully the power of each State 
 to tax at its discretion its own internal commerce, and the fran- 
 chises, property or business of its own corporations, so that inter- 
 state intercourse, trade or commerce be not embarrassed or restrict- 
 ed. That must remain free. 
 
 The conclusion of the whole is that, in our opinion, the act of the 
 legislature of Pennsylvania of August 25th, 1864, so far as it ap- 
 plies to articles carried through the State, or articles taken up in
 
 104 LIMITATIONS OF THE TAXING POWER. 
 
 the State and carried out of it, or articles taken up without 
 the State and brought into it, is unconstitutional and void. 
 
 JUDGMENT REVERSED, and the record is remitted for further pro- 
 ceedings. 
 
 Mr. Justice SWAYNE (with whom concurred Mr. Justice DAVIS), 
 dissenting. 
 
 I dissent from the opinion just read. In my judgment the tax is 
 imposed upon the business of those required to pay it. The ton- 
 nage is only the mode of ascertaining the extent of the business. 
 That no discrimination is made between freight carried wholly 
 within the State, and that brought into or carried through or out 
 of it, sets this, as I think, in a clear light, and is conclusive on the 
 subject. 
 
 LELOUP V. PORT OF MOBILE. 
 
 Supreme Court of the United States. October, 1887. 
 127 United States, 640. 
 
 Mr. Justice BRADLEY delivered the opinion of the court. 
 
 This was an action brought in the Mobile Circuit Court, in the 
 State of Alabama, by the Port of Mobile, a municipal corporation, 
 against Edward Leloup, agent of the Western Union Telegraph 
 Company, to recover a penalty imposed upon him for the violation 
 of an ordinance of said corporation, adopted in pursuance of the 
 powers given to it by the legislature of Alabama, and in force in 
 August, 1883. 
 
 In approaching the question thus presented, it is proper to note 
 that the license tax in question is purely a tax on the privilege of 
 doing the business in which the telegraph company was engaged. 
 By the laws of Alabama in force at the time this tax was imposed, 
 the telegraph company was required, in addition, to pay taxes to the 
 State, county and port of Mobile, on its poles, wires, fixtures and 
 other property, at the same rate and to the same extent as other cor- 
 porations and individuals were required to do. Besides the tax on 
 tangible property, they were also required to pay a tax of 
 three-quarters of one per cent on their gross receipts within the 
 State. 
 
 The question is squarely presented to us, therefore, whether a
 
 LELOUP V. PORT OF MOBILE. 105 
 
 State, as a condition of doing business within its jurisdiction, may 
 exact a license tax from a telegraph company, a large part of whose 
 business is the transmission of messages from one State to another 
 and between the United States and foreign countries, and which is 
 invested with the powers and privileges conferred by the act of Con- 
 gress passed July 24th, 1866, and other acts incorporated in Title 
 LXV. of the Revised Statutes? Can a State prohibit such a com- 
 pany from doing such a business within its jurisdiction unless it 
 will pay a tax and procure a license for the privilege? If it can, it 
 can exclude such companies, and prohibit the transaction of such 
 business altogether. We are not prepared to say that this can be 
 done. 
 
 Ordinary occupations are taxed in various ways, and, in mos 
 cases, legitimately taxed. But we fail to see how a State can tax a 
 business occupation when it cannot tax the business itself. Of 
 course, the exaction of a license tax as a condition of doing any par- 
 ticular business, is a tax on the occupation; and a tax on the occu- 
 pation of doing a business is surely a tax on the business. 
 
 Now, we have decided that communication by telegraph is com- 
 merce, as well as in the nature of postal service, and if carried on 
 between different States, it is commerce among the several States, 
 and directly within the power of regulation conferred upon Con- 
 gress, and free from the control of State regulations, except such as 
 are strictly of a police character. In the case of The Pensacola Tel- 
 egraph Co. v. The Western Union Telegraph Co., 96 U. S. 1, we 
 held that it was not only the right, but the duty of Congress to take 
 care that intercourse among the States and the transmission of in- 
 telligence between them be not obstructed or unnecessarily encum- 
 bered by State legislation; and that the act of Congress, passed July 
 24th, 1866, above referred to, so far as it declares that the erection 
 of telegraph lines shall, as against State interference, be free to all 
 who accept its terms and conditions, and that a telegraph company 
 of one State shall not, after accepting them, be excluded by another 
 State from prosecuting its business within her jurisdiction, is a 
 legitimate regulation of commercial intercourse among the States, 
 and is also appropriate legislation to execute the powers of Congress 
 over the postal service. In Western Union Telegraph Company v. 
 Texas, 105 U. S. 460, we decided that a State cannot lay a tax on 
 the interstate business of a telegraph company, as it is interstate 
 commerce, and that if the company accepts the provisions of the act 
 of 1866, it becomes an agent of the United States, so far as the 
 business of the government is concerned; and State laws are uncoa-
 
 106 LIMITATIONS OF THE TAXING POWER. 
 
 stitutional which impose a tax on messages sent in the service of the 
 government, or sent by any persons from one State to another. In 
 the present case, it is true, the tax is not laid upon individual mes- 
 sages, but it is laid on the occupation, or the business of sending 
 such messages. 
 
 It comes plainly within the principles of the decisions recently 
 made by this court in Bobbins v. The Taxing District of Slielli/ 
 County, 120 U. S. 489 and Philadelphia and Southern Steamship 
 Co. v. Pennsylvania, 122 U. S. 326. 
 
 It is parallel with the case of Brown v. Maryland, 12 Wheat. 419. 
 That was a tax on an occupation and this court held that it wns 
 equivalent to a tax on the business carried on, (the importation of 
 goods from foreign countries), and even equivalent to a tax on the 
 imports themselves, and therefore contrary to the clause of the Con- 
 stitution which prohibits the States from laying any duty on im- 
 ports. The Maryland act which was under consideration in that case 
 declared that "all importers of foreign articles or commodities, etc., 
 and all other persons selling the same by wholesale, etc., shall before 
 they are authorized to sell, take out a license, .... for which 
 they shall pay fifty dollars," etc., subject to a penalty for neglect 
 and refusal. Chief Justice Taney, referring to the case of Brown 
 v. Maryland in Almy v. State of California, 24 How. 169, 173, in 
 which it was decided that a State stamp tax on bills of lading wa* 
 void, said: "We think this case cannot be distinguished from that 
 of Brown v. Maryland. That case was decided in 1827, and the de- 
 cision has always been regarded and followed as the true construc- 
 tion of the clause of the Constitution now in question 
 
 The opinion of the court, delivered by Chief Justice Marshall, 
 shows that it [the case] was carefully and fully considered by the 
 court. And the court decided that the State law [the Maryland law 
 under consideration in Brown v. Maryland,] was a tax on imports, 
 and the mode of imposing it by giving it the form of a tax on the 
 occupation of the importer, merely varied the form in which the 
 tax was imposed, without varying the substance." 
 
 But it is urged that a portion of the telegraph company's busi- 
 ness is internal to the State of Alabama, and therefore taxable by 
 the State. But that fact does not remove the difficulty. The tax 
 affects the whole business without discrimination. There are suffi- 
 cient modes in which the internal business, if not already taxed in 
 some other way, may be subjected to taxation, without the imposi- 
 tion of a tax which covers the entire operations of the company. 
 
 The state court relies upon the case of Osborn v. Mobile, 16
 
 LELOUP V. PORT OF MOBILE. 101 
 
 Wall. 479, which brought up for consideration an ordinance of the 
 city, requiring every express company, or railroad company doing 
 businos in that city, and having a business extending beyond the 
 limits of the State, to pay an annual license of $500; if the busi- 
 ness was confined within the limits of the State, the license fee was 
 only $100; if confined within the city it was $50; subject in each 
 L-ase to a penalty for neglect or refusal to pay the charge. This 
 court held that the ordinance was not unconstitutional. This was 
 in December term, 1872. In view of the course of decisions which 
 have been made since that time, it is very certain that such an ordi- 
 nance would now be regarded as repugnant to the power conferred 
 upon Congress to regulate commerce among the several States. 
 
 A great number and variety of cases involving the commercial 
 power of Congress have been brought to the attention of this court 
 during the past fifteen years which have frequently made it neces- 
 sary to re-examine the whole subject with care; and the result has 
 sometimes been that in order to give full and fair effect to the dif- 
 ferent clauses of the Constitution, the court has felt constrained to 
 recur to the fundamental principles stated and illustrated with so 
 much clearness and force by Chief Justice Marshall and other mem- 
 bers of the court in former times, and to modify in some degree 
 certain dicta and decisions that have occasionally been made in the 
 intervening period. This is always done, however, with great cau- 
 tion, and an anxious desire to place the final conclusion reached 
 upon the fairest and most just construction of the Constitution in 
 all its parts. 
 
 In our opinion such a construction of the Constitution leads to 
 the conclusion that no State has the right to lay a tax on interstate 
 commerce in any form, whether by way of duties laid on the trans- 
 portation of the subjects of that commerce, or on the receipts de- 
 rived from that transportation, or on the occupation or business of 
 carrying it on, and the reason is that such taxation is a burden on 
 that commerce, and amounts to a regulation of it, which belongs 
 solely to Congress. This is the result of so many recent cases that 
 citation is hardly necessary. 
 
 We may here repeat, what we have so often said before, that this 
 exemption of interstate and foreign commerce from state regula- 
 tion does not prevent the State from taxing the property of those 
 engaged in such commerce located within the State as the property 
 of other citizens is taxed, nor from regulating matters of local con- 
 cern which may incidentally affect commerce, such as wharfage,
 
 108 LIMITATIONS OF THE TAXING POWER, 
 
 pilotage, and the like. We have recently had before us the question 
 of taxing the property of a telegraph company, in the case of West- 
 ern Union Telegraph Company v. Massachusetts, 125 U. S. 530. 
 
 The result of the conclusion which we have reached is, that the 
 judgment of the Supreme Couit of Alahama must be Reversed, and 
 the cause remanded with instructions to reverse the judgment of 
 the Mobile Circuit Court; and it is so ordered. 
 
 PICKARD V. PULLMAN SOUTHERN CAR CO. 
 
 Supreme Court of the United States. October, 1885. 
 117 United States, 34- 
 
 Mr. Justice BLATCHFORD delivered the opinion of the court. 
 After stating the Case he continued: 
 
 The point upon which the final judgment was rendered in the 
 case was the one considered and adjudged in the decision given on 
 the demurrer to the declaration. The tax was not a property tax, 
 because, under the Constitution of Tennessee, all property must be 
 taxed according to its value, and this tax was not measured by 
 value, but was an arbitrary charge. What was done by the plaintiff 
 was taxed as a privilege, it being assumed by the State authorities 
 that the Legislature had the power, under the Constitution of Ten- 
 nessee, to enact the 6th section of the act of 1877, and that the 
 plaintiff had done what that section declared to be a privilege. By 
 the decisions of the Supreme Court of Tennessee, cited in the opin 
 ion of the Circuit Court on the demurrer, it is held, that the Legis- 
 lature may declare the right to carry on any business or eccupation 
 to be a privilege, to be purchased from the State on such conditions 
 as the statute law may prescribe, and that it is illegal to carry on 
 such business without complying with those conditions. In this 
 case the payment of the tax imposed was a condition prescribed, 
 without complying with which what was done by the plaintiff was 
 made illegal. The tax was imposed as a condition precedent to the 
 right of the plaintiff to run and use the thirty-six sleeping cars 
 owned by it, as it ran and used them on railroads in Tennessee. 
 The privilege tax is held by the Supreme Court of Tennessee to be 
 a license tax, for the privilege of doing the thing for which the tax 
 is imposed, it being unlawful to do the thing without paying the 
 tax. .What was done by the plaintiff in this case, in connection with
 
 PICKAED V. PULLMAN SOUTHERN CAR CO. 109 
 
 the use of the thirty-six cars, if wholly a branch of inter-State com- 
 merce, was made by the State of Tennessee unlawful unless the. tax 
 should be paid, and to the extent of the tax, a burden was placed 
 on such commerce; and, upon principle, the tax, if lawful, might 
 equally well have been large enough to practically stop altogether 
 the particular species of commerce. 
 
 What was that commerce? The plaintiff, by its contracts, fur- 
 nished sleeping cars to the railroad company, to be used by the lat- 
 ter "for the transportation of passengers," sufficient in numbers to 
 
 meet the requirements of travel on the road The 
 
 plaintiff collected from every person occupying the car compensa- 
 tion for its accommodations in seats and couches. The railroad com- 
 pany permitted the plaintiff to place its tickets for seats and 
 couches on sale in the ticket offices of the railroad company, the sale 
 to be a part of the general duties of the ticket agents of the latter, 
 and to be without charge to the plaintiff, but the proceeds of sales 
 to be at its risk 
 
 On these facts, the cars in question were cars for the transporta- 
 tion of the passengers who occupied them, in their transit into, or 
 through, or out of Tennessee. They were used by the railroad com- 
 pany for such transportation, and it received the transit fare or 
 compensation 
 
 The tax was a unit, for the privilege of the transit of the pas- 
 senger and all its accessories. No distinction was made in the 
 tax between the right of transit, as a branch of commerce between 
 the States, and the sleeping and other conveniences which ap- 
 pertained to a transit in the car. The tax was really one on tho 
 right of transit, though laid wholly on the owner of the car. So, 
 too, the service rendered to the passenger was a unit. The car was 
 equally a vehicle of transit, as if it had been a car owned by the rail- 
 road company, and the special convenience or comforts furnished to 
 the passenger had been furnished by the railroad company itself 
 As such vehicle of transit, the car, so far as it was engaged in inter - 
 State commerce, was not taxable by the state of Tennessee; be- 
 cause the plaintiff had no domicil in Tennessee, and was not sub- 
 ject to its jurisdiction for purposes of taxation; and the cars had 
 no situs within the state for purposes of taxation; and the plaintiff 
 carried on no business within the State, in the sense in which the 
 carrying on of business in a State is taxable by way of license or 
 privilege 
 
 The fare paid by the inter-State passenger to the railroad com- 
 pany, and that paid to the plaintiff, added together, were merely a
 
 2 n 
 
 ^J^ 
 110 LIMITATIONS OF THE TAXING POWER. 
 
 charge for his convenience in a particular way, and there was 
 really but one charge for the transit, though the total amount paid 
 was divided among two recipients. The service was a single one, 
 of inter-State transit, with certain accommodations for comfort, and 
 what was paid to the plaintiff was part of a charge for the convey- 
 ance of the passenger. 
 
 The views above expressed are in harmony with numerous decis- 
 ions which have been made by this court on the subject to which 
 they relate. 
 
 . The question involved in this case was before the court of chan- 
 cery of Tennessee in Pullman Southern Car Co v. Gaines, 3 Tenn. 
 Ch. 587, on the same facts, as to the privilege tax for 1877. That 
 court held (and it is stated that the Supreme Court of Tennessee, 
 on appeal, affirmed its ruling), that this privilege tax, as to such 
 of the cars as passed and repassed through the State, and did not 
 abide in it, was not amenable to the objection that it interfered 
 with inter-State commerce. The view taken was that the property 
 of the foreign corporation, used in Tennessee, could be taxed as 
 property or by an excise on its use; and that the tax in this case 
 was not directly on the object of commerce, or directly aimed at 
 commerce. We have given to the views set forth by the Tennessee 
 Chancery Court the consideration due to the judgments of that tri- 
 bunal, but are unable to concur in its conclusion. 
 
 Judgment affirmed. 
 
 See Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18, infra, which 
 limits the application of the principal case. 
 
 OSBORNE V. FLORIDA. 
 
 Supreme Court of the United States. October, 1896. 
 164 United States, 650. 
 
 Mr. Justice PECKHAM, after stating the case, delivered the 
 opinion of the court. 
 
 The criminal proceedings against the plaintiff in error were 
 taken by virtue of a statute of Florida, known as chapter 4115, ap- 
 proved June 2, 1893. The ninth section of that chapter provides 
 that: "No person shall engage in or manage the business, profes- 
 sion or occupation mentioned in this section, unless a state license 
 shall have been procured from the tax collector
 
 OSBOJRNE V. FLORIDA. Ill 
 
 The twelfth subdivision provides, among other things, that "all 
 express companies doing business in this state shall pay .... 
 
 a license tax Any express company violating this 
 
 provision, and any person that knowingly acts as agent for any ex- 
 press company before it has paid the above tax, payable by such 
 company, shall be deemed guilty of a misdemeanor, and upon con- 
 viction thereof, shall be punished by a fine of not less than fifty 
 dollars, or confined in the county jail not less than six months." 
 
 In addition to the criminal penalty above set forth, section 10 
 provides that the payment of all licenses taxed may be enforced by 
 the seizure and sale of property by the collector. 
 
 The plaintiff in error assigns two grounds upon which he seeks 
 for a reversal of the judgment of the state court. One is based 
 upon the allegation that the statute, so far as regards the Southern 
 Express Company or himself as its agent, violates the commerce 
 clause of the Federal Constitution, in that it assumes to regulate 
 interstate commerce 
 
 It may be here assumed that if the statute applied to the express 
 company in relation to its interstate business, it would be void as 
 an attempted interference with or regulation of interstate com- 
 merce. 
 
 The particular construction to be given to this state statute is a 
 question for the state court to deal with, and in such a case as this 
 we follow the construction given by the state court to the statutes 
 of its own State. Leffingwell v. Warren, 2 Black. 599; People v. 
 Weaver, 100 U. S., 539, 541; Noble v. Mitchell, 164 U. S. 367., 
 372, and cases there cited. 
 
 The Supreme Court of Florida has construed the ninth section of 
 this act and has held in express terms that it does not apply to or 
 affect in any manner the business of this company which is inter- 
 state in its character; that it applies to and affects only its busi- 
 ness which is done within the State, or is, as it is termed, "local"' 
 in its character, and it has held that under the statute so long as 
 the express company confines its operations to express business that 
 consists of interstate or foreign commerce, it is wholly exempt 
 from the legislation in question. It has added, however, that under 
 the provisions of the statute, if the company engage in business 
 within the State of a local nature as distinguished from an inter- 
 state or foreign kind of commerce, it becomes subject to the statute 
 so far only as concerns its local business, notwithstanding it may 
 at the same time engage in interstate or foreign commerce. In other 
 words, this statute as construed by the Supreme Court of Florida
 
 112 LIMITATIONS OF THE TAXING POWEH, 
 
 does not exempt the express company from taxation upon its busi- 
 ness which is solely within the State, even though at the same time 
 the same company may do a business which is interstate in its char- 
 acter, and that as to the latter kind of business the statute does not 
 apply to or affect it. As thus construed, we have no doubt as to 
 the correctness of the decision that the act does not in any manner 
 violate the Federal Constitution. 
 
 The case of Crutcher v. Kentucky, 14-1 TT S., 47, is not in the 
 slightest degree opposed to this view. The act which was held to 
 be in violation of the Federal Constitution in that case prohibited 
 the agent of a foreign express company from carrying on business 
 at all in that State without first obtaining a license from the State. 
 The company was thus prevented from doing any business, even of 
 an interstate character, without obtaining the license in question. 
 The act was held to be a regulation of interstate commerce in its 
 application to corporations or associations engaged in that business, 
 and that subject was held to belong exclusively to national and not 
 state legislation. 
 
 It has never been held, however, that when the business of the 
 company, which is wholly within the State, is but a mere incident 
 of its interstate business, such fact would furnish any obstacle to 
 the valid taxation by the State of the business of the company 
 which is entirely local. So long as the regulation as to the license 
 or taxation does not refer to and is not imposed upon, the business 
 of the company which is interstate, there is no interference with 
 that commerce by the state statute. It was stated by Mr. Justice 
 Bradley, in the course of his opinion in the Crutcher case, that: 
 "Taxes or license fees in good faith imposed exclusively on express 
 business carried on wholly within the State would be open to no 
 such objection," viz. : an objection that the tax or license was a reg- 
 ulation of or that it improperly affected interstate commerce. We 
 have no doubt that this is a correct statement of the law in that re- 
 gard. The statute herein differs from the cases where statutes upon 
 this subject have been held void, because in those cases the statutes 
 prohibited the doing of any business in the State whatever unless 
 upon the payment of the fee or tax. It was said as to those cases 
 that the law made the payment of the fee or the obtaining of the 
 license a condition of the right to do any business whatever, wheth- 
 er interstate or purely local, it was on that account a regulation of 
 interstate commerce, and, therefore, void. Here, however, under 
 the construction as given by the state court, the company suffers no 
 harm from the provisions of the statute. It can conduct its inter-
 
 BROWN V. HOUSTON. 113 
 
 state business without paying the slightest heed to the act, because 
 it does not apply to or in any degree affect the company in regard 
 to that portion of its business which it has the right to conduct 
 without regulation from the State. 
 
 The company in this case need take out no license and pay no 
 tax for doing interstate business, and the statute is therefore valid. 
 
 Upon the construction given it by the state court the statute does 
 not violate any provision of the Federal Constitution, and the judg- 
 ment of that court is, therefore, 
 
 Affirmed. 
 
 BROWN V. HOUSTON. 
 
 Supreme Court of the United States. October, 1884. 
 114 United States, 622. 
 
 This was a suit in the nature of a bill in equity to restrain the 
 defendants, who were defendants in error here, from collecting a 
 tax, imposed upon personal property by the authorities of the 
 State of Louisiana. The facts which make the case are stated in 
 the opinion of the court. 
 
 Mr. Justice BRADLEY delivered the opinion of the court. 
 
 This suit was brought by the plaintiffs in error in the Civil Dis- 
 trict Court for the Parish of Orleans, State of Louisiana, 30th 
 December, 1880, to enjoin the defendant, Houston, from seizing 
 and selling a certain lot of coal belonging to the plaintiffs, situated 
 in New Orleans. They alleged in their petition that they were 
 residents and did business in Pittsburg, State of Pennsylvania; that 
 Houston, State tax collector of the upper District of the Parish of 
 Orleans, had officially notified Brown & Jones, the agents of the 
 plaintiffs in New Orleans, that they (Brown & Jones) were indebted 
 to the State of Louisiana in the sum of $352.80; state tax for the 
 year 1880 upon a certain lot of Pittsburg coal assessed as their 
 property, and valued at $58,800; that they (Brown & Jones) were 
 delinquents for said tax, and that he, said tax collector, was about 
 to seize, advertise and sell said coal to pay said tax, as would ap- 
 pear by a copy of the notice annexed to the petition. The plain- 
 tiffs alleged that they were not indebted to the State of Louisiana 
 for said tax; that they were the sole owners of the coal, and were 
 not liable for any tax thereon, having paid all taxes legally due for
 
 114 LIMITATIONS OF THE TAXING PO\VK.]{. 
 
 the year 1880 on said coal in Pennsylvania; and that the said coal 
 was simply under the care of Brown & Jones as the agents of the 
 plaintiffs in New Orleans, for sale. They further alleged that said 
 coal was mined in Pennsylvania, and was exported from said State 
 and imported into the State of Louisiana as their property, and 
 was then (at the time of the petition), and had always remained, in 
 its original condition, and never had been or become mixed or in- 
 corporated with other property in the State of Louisiana. 
 
 That when said assessment was made, the said coal was afloat in 
 the Mississippi river in the Parish of Orleans, in the original con- 
 dition in which it was exported from Pennsylvania, and the agent?, 
 Brown & Jones, notified the board of assessors of the parish that 
 the coal did not belong to them, but to the plaintiffs, and was held 
 as before stated, and was not subject to taxation, and protested 
 against the assessment for that purpose. The plaintiffs averred 
 that the assessment of the tax and any attempt to collect the same 
 were illegal and oppressive, and contrary to the Constitution of the 
 United States, Article 1, Section 8, paragraphs 1 and 3, and Sec- 
 tion 10, paragraph 2; and therefore prayed an injunction to prevent 
 the seizure and sale of the coal, which, upon giving the requisite 
 bond, was granted. 
 
 The defendant answered with a general denial, but admitting the 
 assessment of the tax and the intention to sell the property for 
 payment thereof. 
 
 Upon the case as thus made the District Court of the parish dis- 
 solved the injunction and dismissed the suit. On appeal to the 
 Supreme Court of Louisiana, the judgment was affirmed, and the 
 case is now here by writ of error to the judgment of the Supreme 
 Court. 
 
 The following errors have been assigned: 
 
 "The lower court erred in holding: 
 
 "1st. That the tax in question did not violate Article 4, Section 
 2, Clause 1, of the Federal Constitution. 
 
 "2d. That it did not violate Article 1, Section 8, Clause 3, of 
 the same- instrument. 
 
 "3d. That it did not violate Article 1, Section 10, Clause 2, of 
 the same instrument. 
 
 The' clauses here referred to are these : 
 
 1. "The citizens of each State shall be entitled to all privileges 
 and immunities of citizens in the several States."
 
 BROWN V. HTOUSTON. 115 
 
 2. "The Congress shall have power to regulate commerce with 
 foreign nations, and among the several States, and with the Indian 
 tribes.'"' 
 
 3. "No State shall, without the consent of the Congress, lay 
 any imposts or duties on imports or exports, except what may be 
 absolutely necessary for executing its inspection laws/' 
 
 It was decided by this court in the case of Woodruff v. Parham, 
 8 Wall. 123, that the term "imports" as used in that clause of the 
 Constitution which declares that "no State shall, without the con- 
 sent of Congress, lay any imposts or duties on imports or exports," 
 does not refer to articles carried from one State into another, but 
 only to articles imported from foreign countries into the United 
 States. 
 
 The other assumption made under that assignment, that some of 
 the coal was afterwards exported, and that the tax complained of 
 was therefore pro tanto a duty on exports, is equally untenable. 
 When the petition was filed the coal was lying in New Orleans, in 
 the hands of Brown & Jones, for sale. The petition states this in 
 so many words, and Rootes testifies the same thing, and adds that 
 it was to be sold by the flat-boat load. He also adds that at the 
 time of his examination more than half of it had been exported to 
 foreign countries; but he probably means that it had been sold to 
 steamers sailing to foreign ports for use on the same, and had 
 only been exported in that way. The complainants were not ex- 
 porters; they did not hold the coal at New Orleans for exportation, 
 but for sale there. Being in New Orleans, and held there on sale, 
 without reference to the destination or use which the purchasers 
 might wish to make of it, it was taxed in the hands of the owners 
 (or their agents) like all other property in the city, six mills on 
 the dollar. If after this, and after being sold, the purchaser 
 thought proper to put it on board of a steamer bound to foreign 
 parts, that did not alter the character of the taxation so as to con- 
 vert it from a general tax to a duty on exports. When taxed it was 
 not held with the intent or for the purpose of exportation, but 
 with the intent and for the purpose of sale there, in New Orleans. 
 A duty on exports must either be a duty levied on goods as a condi- 
 tion, or by reason of their exportation, or, at least, a direct tax or 
 duty on goods which are intended for exportation. Whether the 
 last would be a duty on exports, it is not : ecessary to determine. 
 But certainly, where a general tax is laid on all property alike,
 
 116 LIMITATIONS OF THE TAXING POWER. 
 
 it cannot be construed as a duty on exports when falling upon 
 goods not then intended for exportation, though they should hap- 
 pen to be exported afterwards. This is the most that can be said 
 of the goods in question, and we are, therefore, of opinion that 
 the tax was not a duty on exports any more than it was a duty on 
 imports, within the meaning of those terms in the clause under 
 consideration. 
 
 But in holding, with the decision in Woodruff v. Parham, that 
 goods carried from one State to another are not imports or ex- 
 ports within the meaning of the clause which prohibits a State 
 from laying any impost or duty on imports or exports, we do not 
 mean to be understood as holding that a State may levy import 
 or export duties on goods imported from or exported to another 
 State. We only mean to say that the clause in question does not 
 prohibit it. Whether the laying of such duties by a State would 
 not violate some other provision of the Constitution, that, for ex- 
 ample, which gives to Congress the power to regulate commerce 
 with foreign nations, among the several States, and with the 
 Indian tribes, is a different question. This brings us to the con- 
 sideration of the second assignment of error, which is founded on 
 the clause referred to. 
 
 The power to regulate commerce among the several States is 
 granted to Congress in terms as absolute as is the power to regulate 
 commerce with foreign nations. If not in all respects an exclusive 
 power; if, in the absence of congressional action, the States may 
 continue to regulate matters of local interest only incidentally 
 affecting foreign and interstate commerce, such as pilots, wharves, 
 harbors, roads, bridges, tolls, freights, etc., still, according to the 
 rule laid down in Cooley v. Board of Wardens of Philadelphia, 12 
 How. 299, 319, the power of Congress is exclusive wherever the 
 matter is national in its character or admits of one uniform sys- 
 tem or plan of regulation; and is certainly so far exclusive that no 
 State has power to make any law or regulation which will affect the 
 free and unrestrained intercourse and trade between the States, as 
 Congress has left it, or which will impose any discriminating bur- 
 den or tax upon the citizens or products of other States, coming or 
 brought within its jurisdiction. All laws and regulations are re- 
 strictive of natural freedom to some extent, and where no regulation 
 is imposed by the grovernment which has the exclusive power to 
 regulate, it is an indication of its will that the matter shall be left 
 free. So long as Congress does not pass any law to regulate com- 
 merce among the several States, it thereby indicates its will that
 
 BROWN V. HOUSTON. 11? 
 
 that commerce shall be free and untrammelled; and any regulation 
 of the subject by the States is repugnant to such freedom. This 
 has frequently been laid down as law in the judgments of this 
 court. In Welton v. State of Missouri, 91 U. ,S., 282, Mr. Justice 
 Field, speaking for the court, said: "The fact that Congress has 
 not seen fit to prescribe any specific rules to govern interstate com- 
 merce does not affect the question. Its inaction on this subject, 
 when considered with reference to its legislation with respect to 
 foreign commerce, is equivalent to a declaration that interstate 
 commerce shall be free and untrammelled." This was said in a 
 case where the plaintiff in error had been convicted of selling 
 goods without a license under a law of the State of Missouri, which 
 prohibited any person from dealing as a peddler without a license, 
 and which declared that a peddler was one dealing in goods or 
 wares "not the growth, produce or manufacture of this State, 
 [Missouri] by going from place to place to sell the same." . 
 
 In the case of Railroad Co. v. Husen, 95 U. S., 465, 469, in 
 which another law of the State of Missouri came up for considera- 
 tion, which declared that no Texas, Mexican or Indian cattle should 
 be driven, or otherwise conveyed into the State between the 1st of 
 May and the 1st of November, unless carried through the State in 
 cars, without being unloaded, this court, through Mr. Justice 
 Strong, said: "It seems hardly necessary to argue at length that, 
 unless the statute can be justified as a legitimate exercise of the 
 police power of the State, it is a usurpation of the power vested 
 exclusively in Congress. It is a plain regulation of interstate com- 
 merce, a regulation extending to prohibition. Whatever may be 
 the power of a State over commerce that is completely internal, it 
 can no more prohibit or regulate that which is interstate than it 
 can that which is with foreign nations." In short, it may be laid 
 down as the settled doctrine of this court, at this day, that a State 
 can no more regulate or impede commerce among the several States 
 than it can regulate or impede commerce with foreign nations. 
 
 This being the recognized law, the question then arises whether 
 the assessment of the tax in question amounted to any interference 
 with or restriction upon the free introduction of the plaintiffs' coal 
 from the State of Pennsylvania into the State of Louisiana, and 
 the free disposal of the same in commerce in the latter State; in 
 other words, whether the tax amounted to a regulation of, or re- 
 striction upon, commerce among the States: or only to an exercise 
 of local adminstration under the general taxing power, which,
 
 118 LIMITATIONS OF THE TAXING POWER. 
 
 though it may incidentally affect the subjects of commerce, is en- 
 tirely within the power of the State until Congress shall see fit 
 to interfere and make express regulations on the subject. 
 
 As to the character and mode of the assessment, little need be 
 added to what has already been said. It was not a tax imposed 
 upon the coal as a foreign product, or as the product of any other 
 State than Louisiana, nor a tax imposed by reason of the coal being 
 imported or brought into Louisiana, nor a tax imposed whilst it 
 was in a state of transit through that State to some other place 
 of destination. It was imposed after the coal had arrived at its 
 destination and was put up for sale. The coal had come to its 
 place of rest, for final disposal or use, and was a commodity in 
 the market of New Orleans. It might continue in that condition 
 for a year or two years, or only for a day. It had become part 
 of the general mass of property in the State, and as such it was 
 taxed for the current year (1880), as all other property in the city 
 of New Orleans was taxed. Under the law, it could not be taxed 
 again until the following year. It was subjected to no discrimina- 
 tion in favor of goods which were the product of Louisiana, or 
 goods which were the property of citizens of Louisiana. It was 
 treated in exactly the same manner as such goods were treated. 
 
 It cannot be seriously contended, at least in the absence of any 
 congressional legislation to the contrary, that all goods which are 
 the product of other States are to be free from taxation in the 
 State to which they may be carried for use or sale. Take the 
 city of New York for example. When the assessor of taxes goes 
 his round, must he omit from his list of taxables all goods which 
 have come into the city from the factories of New England and 
 New Jersey, or from the pastures and grain fields of the west? 
 If he must, what will be left for taxation? And how is he to 
 distinguish between those goods which are taxable and those which 
 are not? With the exception of goods imported from foreign 
 countries, still in the original packages, and goods in transit to 
 some other place, why may he not assess all property alike that 
 may be found in the city, being there for the purpose of remain- 
 ing there till used or sold, and constituting part of the great mass 
 of its commercial capital provided always, that the assessment be a 
 general one, and made without discrimination between goods the 
 product of New York, and goods the product of other States? Of 
 Bourse the assessment should be a general one, and not discriminative 
 between goods of different States. The taxing of goods coming 
 from other States, as such, or by reason of their coming, would be
 
 BROWN V. HOUSTON. 119 
 
 a discriminating tax against them as imports, and would be a regu- 
 lation of interstate commerce, inconsistent with that perfect freedom 
 of trade which Congress has seen fit should remain undisturbed. 
 But if, after their arrival within the State, that being their place 
 of destination for use or trade, if, after this, they are subjected to 
 a general tax laid alike on all property within the city, we fail to 
 see how such a taxing can be deemed a regulation of commerce 
 which would have the objectionable effect referred to. 
 
 We do not mean to say that if a tax collector should be stationed 
 at every ferry and railroad depot in the City of New York, charged 
 with the duty of collecting a tax on every wagon load, or car load 
 of produce and merchandise brought into the city, that it would not 
 be a regulation of, and restraint upon interstate commerce, so far 
 as the tax should be imposed on articles brought from other States. 
 We think it would be, and that it would be an encroachment upon 
 the exclusive powers of Congress. It would be very different from 
 the tax laid on auction sales of all property indiscriminately, as in 
 the case of Woodruff v. Parham, which had no relation to the move- 
 ment of goods from one State to another. It would be very differ- 
 ent from a tax laid, as in the present case, on property which had 
 reached its destination, and had become part of the general mass of 
 property of that city, and which was only taxed as a part of that 
 general mass in common with all other property in the city, and in 
 precisely the same manner. 
 
 When Congress shall see fit to make a regulation on the subject of 
 property transported from one State to another, which may have the 
 effect to give it a temporary exemption from taxation in the State to 
 which it is transported, it will be time enough to consider any con- 
 flict that may arise between such regulation and the general taxing 
 laws of the State. In the present case, we can see no such conflict, 
 either in the law itself or in the proceedings which have been had 
 under it and sustained by the State tribunals, nor any conflict with 
 the general rule that a State cannot pass a law which shall inter- 
 fere with the unrestricted freedom of commerce between the States. 
 
 In our opinion, therefore, the second assignment of error is unten- 
 able. 
 
 The only remaining assignment of error to be considered is, that 
 the tax in question violated that clause of the Fourth Article of the 
 Constitution which declares that "the citizens of each State shall be 
 entitled to all privileges and immunities of citizens in the several 
 States." As the applicability of this objection did not occur to us 
 upon reading the record of the case, we have carefully examined the
 
 120 LIMITATIONS OF THE TAXING POWER. 
 
 brief of the plaintiffs' counsel for light on the subject, but, so far 
 as we can understand, the point is not urged. We are certainly un- 
 able to see how, or in what respect, any equality of privileges as 
 citizens has been denied to the plaintiffs by the imposition of the 
 tax. Their property was only taxed like that of all other persons, 
 whether citizens of Louisiana or any other State or country. Not 
 the slightest discrimination was made. 
 
 The judgment of the Supreme Court of Louisiana is 
 
 Affirmed. 
 
 WESTERN UNION TELEGRAPH CO. V. BOROUGH OF NEW 
 
 HOPE. 
 
 Supreme Court of the United States. October, 1902. 
 187 United States, 419. 
 
 By an ordinance passed in 1894, the borough of New Hope, 
 Pennsylvania, imposed an annual license fee of one dollar per pole 
 and two dollars and a half per mile of wire on the telegraph, tele- 
 phone, and electric light poles and wires within its limits. The 
 Western Union Telegraph Company had constructed prior thereto 
 and had since maintained and operated a line of telegraph poles and 
 wires through the borough, and this was an action brought in the 
 Court of Common Pleas of Bucks county, in that State, against the 
 company to recover license fees for the four years commencing with 
 1895. The case came on for trial before the court and a jury, and 
 plaintiff put in evidence the ordinance in question, and it was 
 agreed "between the parties that for the year beginning October 1, 
 1895, there were seventy-five poles and twenty miles of wire, and 
 for the three succeeding years beginning October 1, 1896, there were 
 thirty-six poles and twelve miles of wire maintained by the defend- 
 ant in said borough." Plaintiff then rested, and defendant offered 
 evidence tending to show that the wires were used as through wires, 
 for the transmission of messages between the different States, and 
 the United States and foreign countries; that the company had no 
 office at New Hope, which it operated itself, but that the Philadel- 
 phia and Reading Railroad Company handled the business there, 
 and transferred it to the Western Union at Philadelphia; that no 
 part of the business that went to or from New Hope went over 
 these lines of wires and poles; and that the local business handed 
 to the Western Union at Philadelphia amounted to from about
 
 W. U. TEL. CO. V. NEW HOPE. 121 
 
 seven to seven and one-half dollars per month. The evidence fur- 
 ther tended to show that the cost value of its lines through New 
 Hope was about $372, and that the cost of inspection, repairs and 
 maintenance of the plant of the company had averaged for thirteen 
 years one dollar and forty-nine and one-half cents per wire per an- 
 num; that since October, 1894, the borough had not expended any 
 money on account of the poles and wires of the company; that its 
 expenditures were for repairing streets, street lamps, moderate sums 
 in payment of official services, etc., and that when on holidays the 
 burgess saw fit to appoint a policeman he often called on the con- 
 stable, who was generally paid $2.50 per day. A lineman testified 
 that during those years the borough never did anything, to his 
 knowledge, "in the way of inspecting or repairing or removing or 
 anything else in connection with the poles and wires of those tele- 
 graph companies." Defendants contended that the requirement of 
 payment of the license fee in question amounted to a regulation of 
 commerce, and that the ordinance was therefore void. 
 
 The court left it to the jury to find whether the license fee ex- 
 ceeded what was reasonable under the circumstances. The jury re- 
 turned a verdict in favor of the plaintiff, and judgment was ren- 
 dered thereon, which on error to the Superior Court was affirmed. 
 16 Pa. Superior Ct. Rep., 306. The Supreme Court of Pennsyl- 
 vania refused to allow an appeal to that court. 
 
 Mr. Chief Justice FULLER, after making the foregoing statement, 
 delivered the opinion of the court. 
 
 It is conceded that the borough had the right in the exercise of 
 its police power to impose a reasonable license fee upon telegraph 
 poles and wires within its limits, and that an ordinance imposing 
 such fee is to be taken as prima facie reasonable. But it is insisted 
 that on the evidence of this case the presumption of reasonableness 
 is rebutted, and that the ordinance as administered is void because 
 a regulation of interstate commerce. While in the exercise of its 
 control over its streets, it is admitted that the borough may super- 
 vise the location of the poles erected to sustain the wires of the 
 plaintiff in error, may require them to be marked, may make such 
 inspection of them as may be necessary to protect the public wel- 
 fare, and may impose a reasonable license fee for the cost of such 
 regulation and supervision, and of the issuing of such permits as 
 may be required for the enforcement thereof, yet it is contended 
 that if the license fee turned out to be in excess of the amount 
 necessary to reimburse the municipality the ordinance became un- 
 reasonable and invalid. The Superior Court in its opinion referred
 
 122 LIMITATIONS OF THE TAXING POWER. 
 
 to many decisions of the Supreme Court of Pennsylvania as defi- 
 nitely establishing, among other propositions, "that in an action to 
 recover the license fee for a particular year, the same being payable 
 at the beginning of the year, the fact that the borough or city did 
 not expend money for inspection, supervision, or police surveillance 
 of the poles and wires in that year is not a defence," and "that the 
 courts will not declare such ordinance void because of the alleged 
 unreasonableness of the fee charged, unless the unreasonableness be 
 so clear as to demonstrate an abuse of discretion on the part of the 
 municipal authorities." And it was said that in many of the cases 
 cited the license fee was the same as that imposed by this ordinance. 
 16 Superior Ct. Rep., 309. The Supreme Court affirmed the judg- 
 ment in a similar case on the opinion given below in this. 202 Pa. 
 St., 532. 
 
 In Chester City v. Telegraph Company, 154 Pa. St., 464, in 
 which it was averred in the affidavit of defence that the rates charged 
 were at least five times the amount of the expense involved in the 
 supervision exercised by the municipality, the Supreme Court said: 
 "For the purposes of this case we must treat this averment as true, 
 as far as it goes. The difficulty is it does not go far enough. It 
 refers only to the usual, ordinary or necessary expense of municipal 
 officers, of issuing licenses and other expenses thereby imposed upon 
 the municipality. It makes no reference to the liability imposed 
 upon the city by the erection of its telegraph poles. It is the duty 
 of the city to see that the poles are safe, and properly maintained, 
 and should a citizen be injured in person or property by reason of a 
 neglect of such duty, an action might lie against the city for the 
 consequences of such neglect. It is a mistake therefore to measure 
 the reasonableness of the charge by the amount actually expended by 
 the city for a particular year, to the particular purposes specified 
 in the affidavit." 
 
 In Taylor Borough v. Telegraph Company, 202 Pa. St., 583, the 
 Supreme Court said: "Clearly the reasonableness of the fee is not 
 to be measured by the value of the poles and wires or of the land 
 occupied, nor by the profits of the business. The elements which 
 enter into the charge are the necessary or probable expense incident 
 to the issuing of the license and the probable expense of such in- 
 spection, regulation and police surveillance as municipal authorities 
 may lawfully give to the erection and maintenance of the poles and 
 
 wires Whether or not the fee is so obviously excessive 
 
 as to lead irresistibly to the conclusion that it is exacted as a return 
 for the use of the streets, or is imposed for revenue purposes, is a
 
 STATE TAX OX EAILWAY GROSS RECEIPTS. 123 
 
 question for the courts and is to be determined upon a view of tho 
 facts, not upon evidence consisting of the opinions of witnesses as 
 to the proper supervision that the municipal authorities might prop- 
 erly exercise and the expense of the same." And see City of Phila- 
 delphia v. Western Union Telegraph Company, 89 Fed. Rep., 454. 
 
 Concurring in these views in general, we think it would be going 
 much too far for us to decide that the test set up by the plaintiff in 
 error must be necessarily applied, and the ordinance held void be- 
 cause of a failure to meet it. As the Supreme Court pointed out, 
 the elements entering into the charge are various, and the Court of 
 Common Pleas, the Superior Court, and the Supreme Court of 
 Pennsylvania have held it to be reasonable, and we cannot say that 
 their conclusion is so manifestly wrong as to justify our interposi- 
 tion. 
 
 The license fee was not a tax on tne property of the company, or 
 on its transmission of messages, or on its receipts from such trans- 
 mission, or on its occupation, or business, but was a charge in the 
 enforcement of local governmental supervision and as such not in 
 itself obnoxious to the clause of the Constitution relied on. St. 
 Louis v. Telegraph Company, 148 U. S., 92; 149 U. S., 465. 
 
 Judgment affirmed. 
 
 Mr. Justice WHITE, Mr. Justice PECKHAM and Mr. Justice Mc- 
 KEXNA dissented. 
 
 STATE TAX OX RAILWAY GROSS RECEIPTS. 
 
 Supreme Court of the United States. December, 1872. 
 15 Wallace, 284. 
 
 Mr. Justice STRONG delivered the opinion of the court. 
 
 The question is whether the act of the legislature of Pennsylvania, 
 passed February 23d, 1866, under which a tax was levied upon the 
 Philadelphia and Reading Railroad Company of three-quarters of 
 one per cent upon the gross receipts of the company during the six 
 months ending December 31st, 1867, is in conflict with the third 
 clause of the eighth section, article first, of the Constitution of the 
 United States, which confers upon Congress the power to "regulate 
 commerce with foreign nations, among the several States and with 
 the Indian tribes;" or whether it is in conflict with the second 
 clause of the tenth section of the same article, which prohibits the 
 States, "without the consent of Congress, from laying any imposts 
 or duties on imports or exports, except what may be absolutely neces-
 
 124 LIMITATIONS OF THE TAXING POWEK. 
 
 sary for executing their inspection laws." It was claimed in the 
 State courts that the act was unconstitutional so far as it taxes that 
 portion of the gross receipts of companies which are derived from 
 transportation from the State to another State, or into the State 
 from another, and the Supreme Court of the State having decided 
 adversely to the claim, the case has been brought here for review. 
 
 Is, then, the tax imposed by the act of February 23d, 1866, a tax 
 upon freight transported into, or out of, the State, or upon the 
 owner of freight, for the right of thus transporting it? Certainly 
 it is not directly. Very manifestly it is a tax upon the railroad com- 
 pany, measured in amount by the extent of its business or the de- 
 gree to which its franchise is exercised. That its ultimate effect 
 may be to increase the cost of transportation must be admitted. So 
 it must be admitted that a tax upon any article of personal prop- 
 erty, that may become a subject of commerce, or upon any instru- 
 ment of commerce, affects commerce itself. If the tax be upon an 
 instrument, such as the stage-coach, a railroad car, or a canal, or 
 steamboat, its tendency is to increase the cost of transportation. 
 Still it is not a tax upon transportation, or upon commerce, and it 
 has never been seriously doubted that such a tax may be laid. A 
 tax upon landlords as such affects rents, and generally increases 
 them, but it would be a misnomer to call it a tax upon tenants. A 
 tax upon the occupation of a physician or an attorney, measured by 
 the income of his profession, or upon a banker, graduated according 
 to the amount of his discounts or deposits, will hardly be claimed 
 to be a tax upon his patients, clients or customers, thought the bur- 
 den ultimately falls upon them. It is not their money which is 
 taken by the government. The law exacts nothing from them. But 
 when, as in the other case between these parties, a company is made 
 an instrument by the laws to collect the tax from transporters, when 
 the statute plainly contemplates that the contribution is to come 
 from them, it may properly be said that they are the person? 
 charged. Such is not this case. The tax is laid upon the gross re- 
 ceipts of the company; laid upon a fund which has become the 
 property of the company, mingled with its other property, and pos- 
 sibly expended in improvements or put out at interest. The statute 
 does not look beyond the corporation to those who may have con- 
 tributed to its treasury. The tax is not levied and, indeed, such a 
 tax cannot be, until the expiration of each half-year, and until the 
 money received for freights, and from other sources of income, has 
 actually come into the company's hands. Then it has lost its dis-
 
 STATE TAX ON BAILWAY GROSS RECEIPTS. 125 
 
 tinctive character as freight earned, by having become incorporated 
 into the general mass of the company's property. While it must be 
 conceded that a tax upon interstate transportation is invalid, there 
 seems to be no stronger reason for denying the power of a State to 
 tax the fruits of such transportation after they have become inter- 
 mingled with the general property of the carrier, than there is for 
 denying her power to tax goods which have been imported, after 
 their original packages have been broken, and after they have been 
 mixed with the mass of general property in the country. That such 
 a tax is not unwarranted is plain. Thus, in Brown v. Maryland 
 (12 Wheat., 419-441), where it was ruled that a State tax cannot 
 be levied, by the requisition of a license, upon importers of foreign 
 goods by the bale or package, or upon other persons selling the same 
 by bale or package, Chief Justice Marshall, considering the dividing 
 line between the prohibition upon the States against taxing imports 
 and their general power to tax persons and property within their 
 limits, said that "when the importer has so acted upon the thing im- 
 ported that it has become incorporated and mixed up with the mass 
 of property in the country, it has, perhaps, lost its distinctive char- 
 acter as an import, and has become subject to the taxing power of 
 the State." This distinction in the liabilities of property in its dif- 
 ferent stages has ever since been recognized. (Waring v. The 
 Mayor, 8 Wall., 122; Pervear v. The Commonwealth, 5 id., 479.) 
 It is most important to the States that it should be. And yet if 
 the States may tax at pleasure imported goods, so soon as the im- 
 porter has broken the original packages, and made the first sale, it 
 is obvious the tax will obstruct importation quite as much as would 
 an equal impost upon the unbroken packages before they have gone 
 to the markets. And this is so though no discrimination be made. 
 
 There certainly is a line which separates that power of the Fed- 
 eral government to regulate commerce among the States, which is 
 exclusive, from the authority of the States to tax persons' property, 
 business, or occupations, within their limits. This line is sometimes 
 difficult to define with distinctness. It is so in the present case; 
 but we think it may be safely laid down that the gross receipts of 
 railroad or canal companies, after they have reached the treasury 
 of the carriers, though they may have been derived in part from 
 transportation of freight between States, have become subject to 
 legitimate taxation. It is not denied that net earnings of such cor- 
 porations are taxable by State authority without any inquiry after 
 their sources, and it is difficult to state any well-founded distinction 
 between the lawfulness of a tax upon them and that of a tax
 
 126 LIMITATIONS OP THE TAXING POWER. 
 
 upon gross receipts, or between the effects they work upon com- 
 merce, except perhaps in degree. They may both come from charges 
 made for transporting freight or passengers between the States, or 
 out of exactions from the freight itself. Net earnings are a part of 
 the gross receipts. 
 
 There is another view of this case to which brief reference may 
 be made. It is not to be questioned that the States may tax the 
 franchises of companies created by them, and that the tax may be 
 proportioned either to the value of a franchise granted, or to the 
 extent of its exercise; nor is it deniable that gross receipts may be 
 a measure of proximate value, or, if not, at least of the extent of 
 enjoyment. If the tax be, in fact, laid upon the companies, adopt- 
 ing such a measure imposes no greater burden upon any freight or 
 business from which the receipts come than would be an equal tax 
 laid upon a direct valuation of the franchise. In both cases, the 
 necessity of higher charges to meet the exaction is the same. 
 
 Influenced by these considerations, we hold that the act of the 
 legislature of the State imposing a tax upon the plaintiffs in error 
 equal to three-quarters of one per cent of their gross receipts is not 
 invalid because in conflict with the power of Congress to regulate 
 commerce among the States. And under the decision made in 
 Woodruff v. Parham (8 Wall., 123), it is not invalid because it lays 
 an impost or duty on imports or exports. 
 
 Judgment affirmed. 
 
 Mr. Justice MILLER (with whom concurred Justices FIELD and 
 HUNT), dissenting. 
 
 PHILADELPHIA, ETC., STEAMSHIP CO. V. PENNSYL- 
 VANIA. 
 
 Supreme Court of the United States. October, 1886. 
 122 United States, 326. 
 
 The question in this case was, whether a State can constitution- 
 ally impose upon a steamship company, incorporated under its laws, 
 a tax upon the gross receipts of such company derived from the 
 transportation of persons and property by sea, between different 
 States, and to and from foreign countries. 
 
 Mr. Justice BRADLEY, after stating the case deliv 
 
 ered the opinion of the court.
 
 STEAMSHIP CO. V. PENNSYLVANIA. 127 
 
 The question which underlies the immediate question in the case 
 is, whether the imposition of the tax upon the steamship company's 
 receipts amounted to a regulation of, or an interference with, inter- 
 state and foreign commerce, and was thus in conflict with the power 
 granted by the Constitution to Congress? The tax was levied di- 
 rectly upon the receipts derived by the company from its fares and 
 freight for the transportation of persons and goods between different 
 states and foreign countries, and from the charter of its vessels 
 which was for the same purpose. This transportation was an act of 
 interstate and foreign commerce. It was the carrying on of sucli 
 commerce. It was that and nothing else. In view of the decisions 
 of this court, it cannot be pretended that the state could constitu- 
 tionally regulate or interfere with that commerce itself. But tax- 
 ing is one of the forms of regulation. It is one of the principal 
 forms. Taxing the transportation, either by its tonnage, or its dis- 
 tance, or by the number of trips performed, or in any other way, 
 would certainly be a regulation of the commerce, a restriction upon 
 it, a burden upon it. Clearly this could not be done by the state 
 without interfering with the power of Congress. Foreign com- 
 merce has been fully regulated by Congress, and any regulations 
 imposed by the states upon that branch of commerce would be a pal- 
 pable interference. If Congress has not made any express regula- 
 tions with regard to interstate commerce, its inaction, as we have 
 often held, is equivalent to a declaration that it shall be free, in all 
 cases where its power is exclusive; and its power is necessarily ex- 
 clusive whenever the subject matter is national in its character 
 and properly admits of only one uniform system. See the cases 
 collected in RolUns v. Shelby Taxing District, 120 IF. S. 489, 492, 
 493. Interstate commerce carried on by ships on the sea is surely 
 of this character. 
 
 If, then, the commerce carried on by the plaintiff in error in 
 this case could not be constitutionally taxed by the state, could the 
 fares and freights received for transportation in carrying on that 
 commerce be constitutionally taxed? If the state cannot tax the 
 transportation, may it, nevertheless, tax the fares and freights re- 
 ceived therefor? Where is the difference? Looking at the sub- 
 stance of things, and not at mere forms, it is very difficult to see 
 any difference. The one thing seems to be tantamount to the other. 
 It would seem to be rather metaphysics than plain logic for the state 
 officials to say to the company: "We will not tax you for the trans- 
 portation you perform, but we will tax you for what you get for
 
 128 LIMITATIONS OF THE TAXING POWER. 
 
 performing it." Such a position can hardly be said to be based on 
 a sound method of reasoning. 
 
 It is necessary, however, that we should examine what bearing the 
 cases of the State Freight Tax and Railway Gross Receipts, re- 
 ported in 15th of Wallace, have upon the question in hand. These 
 cases were much quoted in argument, and the latter was confidently 
 relied on by the counsel of the Commonwealth. They both arose 
 under certain tax laws of Pennsylvania. The first, which is re- 
 ported under the title of Case of the State Freight Tax, 15 Wall. 
 232, was that of the Reading Railroad Company 
 
 The court in its opinion took notice of the fact that the law was 
 general in its terms, making no distinction between freight trans- 
 ported wholly within the state and that which was destined to, or 
 came from another state. But it was held that this made no differ- 
 ence. The law might be valid as to one class, and unconstitutional 
 as to the other 
 
 If this case stood alone, we should have no hesitation in saying 
 that it would entirely govern the one before us; for, as before said, 
 a tax upon fares and freights received for transportation is virtually 
 a tax upon the transportation itself. But at the same time that the 
 Case of State Freight Tax was decided, the other case referred to, 
 namely, that of State Tax on Railway Gross Receipts, was also de- 
 cided, and the opinion was delivered by the same member of the 
 court. 15 Wall. 284. This was also a case of a tax imposed upon 
 
 the Reading Railroad Company These receipts were 
 
 derived partly from the freight of goods transported wholly within 
 the state, and partly from the freight of goods exported to points 
 without the state, which latter were discriminated from the former 
 in the reports made by the company. It was the tax on the latter 
 receipts which formed the subject of controversy. The same line of 
 argument was taken at the bar as in the other case. This court, 
 however, held the tax to be constitutional. The grounds on which 
 the opinion was based in order to distinguish this case from the pre- 
 ceding one, were two: first, that the tax, being collectible only 
 once in six months, was laid upon a fund which had become the 
 property of the company, mingled with its other property, and in- 
 corporated into the general mass of its property, possibly expended 
 in improvements, or otherwise invested. The case is likened, in the 
 opinion, to that of taxing goods which have been imported, after 
 their original packages have been broken, and after they have been
 
 STEAMSHIP CO. V. PENNSYLVANIA. 129 
 
 mixed with the mass of property in the country, which, it was said, 
 are conceded in Brown v. Maryland to be taxable. 
 
 A review of the question convinces us that the first ground on 
 which the decision in State Tax on Railway Gross Receipts was 
 placed is not tenable; that it is not supported by anything decided 
 in Brown v. Maryland; but, on the contrary, that the reasoning in 
 that case is decidedly against it. 
 
 The second ground on which the decision referred to was based 
 was, that the tax was upon the franchise of the corporation granted 
 to it by the state. We do not think that this can be affirmed in 
 the present case. It certainly could not have been intended as a 
 tax on the corporate franchise, because, by the terms of the act, 
 it was laid equally on the corporations of other states doing busi- 
 ness in Pennsylvania. If intended as a tax on the franchise of 
 doing business, which in this case is the business of transportation 
 in carrying on interstate and foreign commerce, it would clearly be 
 unconstitutional. 
 
 V s 
 
 The corporate franchises, the property, the business, the income 
 of corporations created by a state may undoubtedly be taxed by the 
 state; but in imposing such taxes care should be taken not to inter- 
 fere with or hamper, directly or by indirection, interstate or foreign 
 commerce, or any other matter exclusively within the jurisdiction of 
 the Federal government. This is a principle so often announced by 
 the courts, and especially by this court, that it may be received as 
 an axiom of our constitutional jurisprudence. It is unnecessary, 
 therefore, to review the long list of cases in which the subject is 
 discussed. Those referred to are abundantly sufficient for our pur- 
 poses. We may add, however, that since the decision of the Rail- 
 way Tax Cases now reviewed, a series of cases has received the con- 
 sideration of this court, the decisions of which are in general har- 
 mony with the views here expressed, and show the extent and limi- 
 tations of the rule that a state cannot regulate or tax the opera- 
 tions or objects of interstate or foreign commerce 
 
 Our conclusion is, that the imposition of the tax in question in 
 this cause was a regulation of interstate and foreign commerce, in 
 conflict with the exclusive powers of Congress under the Constitu- 
 tion. 
 
 The judgment of the Supreme Court of Pennsylvania is, there- 
 fore, reversed, and the case is remanded to be disposed of accord- 
 ing to law, in conformity with this opinion.
 
 130 LIMITATIONS OF THE TAXING POWER. 
 
 RATTERMAN V. WESTERN UNION TELEGRAPH CO. 
 
 Supreme Court of the United States. May, 1888. 
 121 United States, 411. 
 
 Mr. Justice MILLER, after stating the case, delivered the opinion 
 of the court. 
 
 With regard to the question which is certified to us as dividing 
 the opinions of the judges of the Circuit Court, we do not think 
 that there is any difficulty, and can hardly see how it arose in the 
 present case. The question is "whether a single tax, assessed under 
 the Revised Statutes of Ohio, 2778, upon the receipts of a tele- 
 graph company, which receipts were derived partly from interstate 
 commerce and partly from commerce within the State, but which 
 were returned and assessed in gross and without separation or ap- 
 portionment, is wholly invalid, or invalid only in the proportion 
 and to the extent that said receipts were derived from interstate 
 commerce/' 
 
 We do not think this particular question is material in this casq. 
 because the state of facts* agreed upon between the parties makes 
 this separation and presents the matter to the court, freed from the 
 point raised by the question that the tax was not separable. Nor 
 do we believe, if there were allegations either in the bill or answer 
 setting up that part of the tax was from interstate commerce and 
 part from commerce wholly within the State, that there would have 
 been any difficulty in securing the evidence of the amount of re- 
 ceipts chargeable to these separate classes of telegrams, by means of 
 the appointment of a referee or master to inquire into that fact 
 and make report to the court. Neither are we of opinion that them 
 is any real question, under the decisions of this court, in regard to 
 holding that, so far as this tax was levied upon receipts properly 
 appurtenant to interstate commerce, it was void, and that so far as 
 it was only upon commerce wholly within the State it was valid. 
 
 In Pensacola Telegraph Co. v. Western Union Telegraph Com- 
 pany, 96 U. S., 1, it was decided by this court that the telegraph 
 was an instrument of commerce; that telegraph companies were 
 subject to the regulating power of Congress in respect to their for- 
 eign and interstate business, and that such a company occupies the 
 
 *The statement of facts shows that the Western Union Telegraph Com- 
 pany was incorporated under the laws of New York.
 
 RATTERMAN V. W. U. TEL. CO. 131 
 
 same relation to commerce, as a carrier of messages, that a rail- 
 road company does as a carrier of goods. 
 
 In Telegraph Company v. Texas, 105 U. S., 460, the same ques- 
 tion presented in this case was before the court, that of the power 
 of the State to tax telegraphic messages received and delivered by 
 the same corporation which is now before us. In that case no dis- 
 tinction was made by the statute between what we now call inter- 
 state messages and those exclusively within the State. This court, 
 therefore, in reviewing the decision of the Supreme Court of the 
 State of Texas, which had allowed no deduction for taxes on mes- 
 sages sent out of the State, or by government officers on government 
 business, said: "It follows that the judgment, so far as it includes 
 the tax on messages sent out of the State, or for the government 
 on public business, is erroneous. The rule that the regulation of 
 commerce which is confined exclusively within the jurisdiction and 
 territory of a State, and does not affect other nations, or States, or 
 the Indian tribes that is to say, the purely internal commerce of a 
 State, belongs exclusively to the State, is as well settled as that the 
 regulation of commerce which does affect other nations or States or 
 the Indian tribes belongs to Congress. Any tax, therefore, which 
 the State may put on messages sent by private parties, and not by 
 the agents of the government of the United States, from one place 
 to another, exclusively within its own jurisdiction, will not be re- 
 pugnant to the Constitution of the United States. Whether the 
 law of Texas, in its present form, can be used to enforce the col- 
 lection of such a tax is a question entirely within the jurisdiction 
 of the courts of the State, and as to which we have no power of 
 review." 
 
 The court reversed the judgment of the Supreme Court of 
 Texas, and remanded the cases with instructions for such further 
 proceedings as justice might require. Evidently, the purpose of 
 this was to permit the Supreme Court of that State, if it could sep- 
 arate the taxes upon the two classes of telegrams, to do so, and 
 render judgment accordingly. 
 
 In the recent case of The Western Union Telegraph Company v. 
 The Attorney General of the Commonwealth of Massachusetts, 125 
 U. S., 530, decided at this term, a tax was levied upon that cor- 
 poration, apportioned under the laws of Massachusetts upon the tax- 
 able value of its capital stock. The ratio which should have been 
 allotted to that commonwealth may be supposed to have been prop- 
 erly apportioned to it, ascertaining that portion by means of the 
 length of the lines of the company in relation to the entire mileage
 
 132 LIMITATIONS OF THE TAXING POWER. 
 
 of its lines in the United States. The payment of the tax was re- 
 sisted, however, partly upon the ground that it was levied upon 
 interstate commerce, but mainly because it was asserted to be a 
 violation of the rights conferred on the company by the act of 
 July 24, 1866, now Title LXV., 5263 to 5269, of the Eevised 
 Statutes. It was alleged that the defendant company, having ac- 
 cepted the provisions of that law, was entirely exempt from taxation 
 by the State. This court, however, held that this exemption only 
 extended under that Taw to so much of the lines of the telegraph 
 company as were, in the language of 5263, "through and over 
 any portion of the public domain of the United States, over and 
 along any of the military or post roads of the United States, which 
 have been or may hereafter be declared such by law, and over, un- 
 der, or across the navigable streams or waters of the United States." 
 
 It was shown in that case that, of the 2833.05 miles of the lines 
 of the defendant corporation within the boundaries of Massachu- 
 setts, more than 2334.55 miles came within the terms of that sec- 
 tion, being over or along post roads, made such by the United 
 States, or over, under, or across its navigable streams or waters, leav- 
 ing only 498.50 miles not within such description, on which the 
 company offered to pay the proportion of the tax assessed against 
 it according to mileage by the State authorities. 
 
 We refer to this now only for the purpose of showing how easily 
 the subject of taxation which is forbidden by the Constitution may 
 be separated from that which is permissible in this class of cases. 
 The court held in that case that this tax, being in effect levied upon 
 the capital stock or property of the company in the State of Massa- 
 chusetts, which was ascertained upon the basis of the proportion 
 which the length of its lines in that State bore to their entire length 
 throughout the whole country, and not upon its messages or upon 
 the receipts for such messages, was a valid tax. 
 
 Under these views, we answer the question, in regard to which 
 the judges of the Circuit Court divided in opinion, by saying that a 
 single tax, assessed under the Revised Statutes of Ohio, upon the 
 receipts of a telegraph company which were derived partly from in- 
 terstate commerce and partly from commerce within the State, but 
 which were returned and assessed in gross and without separation 
 or apportionment, is not wholly invalid, but is invalid only in pro- 
 portion to the extent that such receipts were derived from interstate 
 commerce. Concurring, therefore, with the circuit judge in his 
 action, enjoining the collection of the taxes on that portion of the
 
 BROWN V. MARYLAND. 133 
 
 receipts derived from interstate commerce, and permitting the treas- 
 urer to collect the other tax upon property of the company and 
 upon receipts derived from commerce entirely within the limits of 
 the State, this decree is Affirmed. 
 
 2. State Taxation of Imports. 
 BROWN V. STATE OF MARYLAND. 
 
 Supreme Court of the United States. March, 1827. 
 12 Wheaton, 419. 
 
 Mr. Chief Justice MARSHALL delivered the opinion of the court. 
 
 This is a writ of error to a judgment rendered in the Court of 
 Appeals of Maryland, affirming a judgment of the City Court of 
 Baltimore, on an indictment found in that- Court against the plain- 
 tiffs in error, for violating an act of the legislature of Maryland. 
 The indictment was founded on the second section of that act, 
 which is in these words: "And be it enacted, that all importers of 
 foreign articles or commodities, of dry goods, wares, or merchan- 
 dise, by bale or package, or of wine, rum, brandy, whiskey and" 
 other distilled spirituous liquors, etc., and other persons selling the 
 same by wholesale, bale or package, hogshead, barrel, or tierce, shall, 
 before they are authorized to sell, take out a license, as by the orig- 
 inal act is directed, for which they shall pay fifty dollars; and in 
 case of neglect or refusal to take out such license, shall be subject 
 to the same penalties and forfeitures as are prescribed by the orig- 
 inal act to which this is a supplement." The indictment charges 
 the plaintiffs in error with having imported and sold one package 
 of foreign dry goods without having license to do so. A judgment 
 was rendered against them on demurrer for the penalty which the 
 act prescribes for the offence; and that judgment is now before 
 this Court. 
 
 The cause depends entirely on the question, whether the legisla- 
 ture of a State can constitutionally require the importer of foreign 
 articles to take out a license from the State, before he shall be per- 
 mitted to sell a bale or package so imported. 
 
 It has been truly said, that the presumption is in favor of every 
 legislative act, and that the whole burthen of proof lies on him 
 who denies its constitutionality. The plaintiffs in error take the 
 burthen upon themselves, and insist that the act under consideration
 
 134 LIMITATIONS OF THE TAXING POWER, 
 
 is repugnant to two provisions in the Constitution of the United 
 States. 
 
 1. To that which declares that "no State shall, without the con- 
 sent of Congress, lay any imposts, or duties on imports or exports, 
 except what may be absolutely necessary for executing its inspection 
 laws." 
 
 2. To that which declares that Congress shall have power "to 
 regulate commerce with foreign nations, and among the several 
 States, and with the Indian tribes." 
 
 1. The first inquiry is into the extent of the prohibition upon 
 States "to lay any imposts or duties on imports or exports." The 
 counsel for the State of Maryland would confine this prohibition to 
 laws imposing duties on the act of importation or exportation. The 
 counsel for the plaintiffs in error give them a much wider scope. 
 
 What, then, is the meaning of the words, "imposts, or duties on 
 imports or exports?" 
 
 An impost, or duty on imports, is a custom or tax levied on articles 
 brought into a country, and is most usually secured before the im- 
 porter is allowed to exercise his rights of ownership over them, be- 
 cause evasions of the law can be prevented more certainly by ex- 
 ecuting it while the articles are in its custody. It would not, how- 
 ever, be less an impost or duty on the articles, if it were to be levied 
 on them after they were landed. The policy and consequent prac- 
 tice of levying or securing the duty before, or on entering the port, 
 does not limit the power to that state of things, nor, consequently, 
 the prohibition, unless the true meaning of the clause so confines 
 it. What, then, are "imports?" The lexicons inform us, they are 
 "things imported." If we appeal to usage for the meaning of the 
 word, we shall receive the same answer. They are the articles them- 
 selves which are brought into the country. "A duty on imports," 
 then, is not merely a duty on the act of importation, but is a duty 
 on the thing imported. It is not, taken in its literal sense, con- 
 fined to a duty levied while the article is entering the country, but 
 extends to a duty levied after the article has entered the country. 
 The succeeding words of the sentence which limit the prohibition, 
 show the extent in which it was understood. The limitation is, 
 "except what may be absolutely necessary for executing its inspec- 
 tion laws." Now, the inspection laws, so far as they act upon arti- 
 cles for exportation, are generally executed on land, before the arti- 
 cle is put on board the vessel; so far as they act on importations, 
 they are generally executed on articles which are landed. The tax
 
 BROWN V. MARYLAND. 135 
 
 or duty of inspection, then, is a tax which is frequently, if not 
 always paid for service performed on land, while the article is in the 
 bosom of the country. Yet this tax is an exception to the prohibi- 
 tion on the States to lay duties on imports or exports. The excep- 
 tion was made because the tax would otherwise have been within the 
 prohibition. 
 
 If it be a rule of interpretation to which all assent, that the ex- 
 ception of a particular thing from general words, proves that, in the 
 opinion of the lawgiver, the thing excepted would be within the gen- 
 eral clause had the exception not been made, we know no reason 
 why this general rule ehould not be as applicable to the Constitution 
 as to other instruments. If it be applicable, then this exception in 
 favour of duties for the support of the inspection laws, goes far in 
 proving that the framers of the Constitution classed taxes of a sim- 
 ilar character with those imposed for the purposes of inspection, 
 \vith duties on imports and exports, and supposed them to be pro- 
 hibited. 
 
 If we quit this narrow view of the subject, and passing from the 
 literal interpretation of the words, look to the objects of the pro- 
 hibition, we find no reason for withdrawing the act under considera- 
 tion from its operation. 
 
 From the vast inequality between the different States of the con- 
 federacy, as to commercial advantages, few subjects were viewed 
 with greater interest, or excited more irritation, than the manner 
 in which the several States exercised, or seemed disposed to exercise, 
 the power of laying duties on imports. From motives which were 
 deemed sufficient by the statesmen of that day, the general power of 
 taxation, indispensably necessary as it was, and jealous as the States 
 were of any encroachment on it, was so far abridged as to forbid 
 them to touch imports or exports, with the single exception which 
 has been noted. Why are they restrained from imposing these 
 duties? Plainly, because, in the general opinion, the interest of all 
 would be best promoted by placing that whole subject under the 
 control of Congress. Whether the prohibition to "lay imposts, or 
 duties on imports or exports," proceeded from the apprehension that 
 the power might be so exercised as to disturb that equality among 
 the States which was generally advantageous, or that harmony be- 
 tween them which it was desirable to preserve, or to maintain un- 
 impaired our commercial connexions with foreign nations, or to con- 
 fer this source of revenue on the government of the Union, or 
 whatever other motive might have induced the prohibition, it is 
 plain, that the object would be as completely defeated by a power to
 
 136 LIMITATIONS OF THE TAXING POWER. 
 
 tax the article in the hands of the importer the instant it was 
 landed, as by a power to tax it while entering the port. There is 
 no difference, in effect, between the power to prohibit the sale of an 
 article, and a power to prohibit its introduction into the country. 
 The one would be a necessary consequence of the other. No goods 
 would be imported if none could be sold. No object of any descrip- 
 tion can be accomplished by laying a duty on importation, which 
 may not be accomplished with equal certainty by laying a duty on 
 the thing imported in the hands of the importer. It is obvious, that 
 the same power which imposes a light duty, can impose a very heavy 
 one, one which amounts to a prohibition. Questions of power do not 
 depend on the degree to which it may be exercised. If it may be 
 exercised at all, it must be exercised at the will of those in whose 
 hands it is placed. If the tax may be levied in this form by a 
 State, it may be levied to an extent which will defeat the revenue 
 by, impost, so far as it is drawn from importations into the par- 
 ticular State. We are told, that such wild and irrational abuse of 
 power is not to be apprehended, and is not to be taken into view 
 when discussing its existence. All power may be abused; and if 
 the fear of its abuse is to constitute an argument against its exist- 
 ence, it might be urged against the existence of that which is uni- 
 versally acknowledged, and which is indispensable to the general 
 safety. The States will never be so mad as to destroy their own 
 commerce, or even to lessen it. 
 
 We do not dissent from these general propositions. We do not 
 suppose any State would act so unwisely. But we do not place the 
 question on that ground. 
 
 These arguments apply with precisely the same force against the 
 whole prohibition. It might, with the same reason be said, that no 
 State would be so blind to its own interests as to lay duties on im- 
 portations which would either prohibit or diminish its trade. Yet 
 the framers of our Constitution have thought this a power which 
 no State ought to exercise. Conceding, to the full extent which is 
 required, that every State would, in its legislation on this subject, 
 provide judiciously for its own interests, it cannot be conceded, that 
 each would respect the interest of others. A duty on imports is a 
 tax on the article which is paid by the consumer. The great import- 
 ing States would thus levy a tax on the non-importing States, which 
 would not be less a tax because their interest would afford ample 
 security against its ever being so heavy as to expel commerce from 
 their ports. This would necessarily produce countervailing measures 
 on the part of those States whose situation was less favourable to
 
 BROWN V. MARYLAND. 137 
 
 importation. For this, among other reasons, the whole power of 
 laying duties on imports was, with a single and slight exception, 
 taken from the States. When we are inquiring whether a particular 
 act is within this prohibition, the question is not. whether the State 
 may so legislate as to hurt itself, but whether the act is within the 
 words and mischief of the prohibitory clause. It has already been 
 shown, that a tax on the article in the hands of the importer, is 
 within its words; and we think it too clear for controversy, that 
 the same tax is within' its mischief. We think it unquestionable, 
 that such a tax has precisely the same tendency to enhance the price 
 of the article, as if imposed upon it while entering the port. 
 
 The counsel for the State of Maryland insist, with great reason, 
 that if the words of the prohibition be taken in their utmost lati- 
 tude, they will abridge the power of taxation, which all admit to be 
 essential to the States, to an extent which has never yet been sus- 
 pected, and will deprive them of resources which are necessary to 
 supply revenue, and which they have heretofore been admitted to 
 possess. These words must therefore be construed with some limita- 
 tion; and, if this be admitted, they insist, that entering the coun- 
 try is the point of time when the prohibition ceases, and the power 
 of the State to tax commences. 
 
 It may be conceded, that the words of the prohibition ought not 
 to be pressed to their utmost extent; that in our complex system, 
 the object of the powers conferred on the government of the Union, 
 and the nature of the often conflicting powers which remain in the 
 States, must always be taken into view, and may aid in expounding 
 the words of any particular clause. But, while we admit that 
 sound principles of construction ought to restrain all Courts from 
 carrying the words of the prohibition beyond the object the Consti- 
 tution is intended to secure; that there must be a point of time 
 when the prohibition ceases, and the power of the State to tax com- 
 mences; we cannot admit that this point of time is the instant 
 the articles enter the country. It is, we think, obvious, that this 
 construction would defeat the prohibition. 
 
 The constitutional prohibition on the States to lay a duty on im- 
 ports, a prohibition which a vast majority of them must feel an 
 interest in preserving, may certainly come in conflict with their 
 acknowledged power to tax persons and property within their ter- 
 ritory. The power, and the restriction on it, though quite distin- 
 guishable when they do not approach each other, may yet, like the 
 intervening colours between white and black, approach ?o nearly as 
 to perplex the understanding, as colours perplex the vision in mark-
 
 138 LIMITATIONS OF THE TAXING POWER. 
 
 ing the distinction between them. Yet the distinction exists, and 
 must be marked as the cases arise. Till they do arise, it might bo 
 premature to state any rule as being universal in its application. 
 It is sufficient for the present to say, generally, that when the im- 
 porter has so acted upon the thing imported, that it has luvonie in- 
 corporated and mixed up with the mass of property in the coun- 
 try, it has, perhaps, lost its distinctive character as an import, and 
 has become subject to the taxing power of the State; but while re- 
 maining the property of the importer, in his warehouse, in the orig- 
 inal form or package in which it was imported, a tax upon it is too 
 plainly a duty on imports to escape the prohibition in the Consti- 
 tution. 
 
 The counsel for the plaintiffs in error contend, that the importer 
 purchases, by payment of the duty to the United States, a right to 
 dispose of his merchandise, as well as to bring it into the country 
 and certainly the argument is supported by strong reason, as well 
 as by the practice of nations, including our own. The object of 
 importation is sale; it constitutes the motive for paying the duties; 
 and if the United States possess the power of conferring the right 
 to sell, as the consideration for which the duty is paid, every prin- 
 ciple of fair dealing requires that they should be understood to 
 confer it. The practice of the most commercial nations conforms to 
 this idea. Duties, according to that practice, are charged on those 
 articles only which are intended for sale or consumption in the 
 country. Thus, sea stores, goods imported and re-exported on the 
 same vessel, goods landed and carried over land for the purpose of 
 being re-exported from some other port, goods forced in by stress 
 of weather, and landed, but not for sale, are exempted from the 
 payment of duties. The whole course of legislation on the subject 
 shows, that, in the opinion of the legislature, the right to sell is 
 connected with the payment of duties. 
 
 The counsel for the defendant in error have endeavoured to illus- 
 trate their proposition, that the constitutional prohibition ceases the 
 instant the goods enter the country, by an array of the conse- 
 quences which they suppose must follow the denial of it. If the 
 importer acquires the right to sell by the payment of duties, he 
 may, they say, exert that right when, where, and as he pleases, and 
 the State cannot regulate it. He may sell by retail, at auction, or 
 as an itinerant pedlar. He may introduce articles, as gunpowder, 
 which endanger a city, into the midst of its population; he may in- 
 troduce articles which endanger the public health, and the power of 
 self-preservation is denied. An importer may bring in goods, as
 
 BROWN v. MANY: \\ 139 
 
 plate, for his own use, and thus retain wueh valuable property \ 
 euipt from taxation. 
 
 These objections to the principle, if well founded, would eerUiuh 
 be entitled to serious consideration. But, we think, they will Ue 
 found, on examination, not to belong necessarily to the principle. 
 and. consequently, not to prove* that it may not be resortvd to with 
 safety as a criterion by which to measure the extent of the prohibi- 
 tion. 
 
 This indictment is against the importer, for selling a package of 
 dry goods in the form in which it was imported, without a license 
 This state of things is changed if he sells them, or ot: 
 them with the general property of the State, by breaking up In- 
 packages, and travelling with them as an UUUM-.-UH pedlar. In the 
 first case, the tax intercepts the import, as an import, in its way 
 to become incorporated with the general mass of property, and de 
 nics it the privilege of becoming so incorporated until it shall luv 
 contributed to the revenue of the State. It denies ID the import, i 
 the right of using the privilege which he has purchased from the 
 I'nited States, until he shall have also purchased it from the Shu, 
 In the last eases, the tax I'm da the article alrc.id\ m.orporaled \\ith 
 the mass of property hy the act of the importer. He has used the 
 privilege he had purchased, and has himself mixed them up \viih the 
 eommon mass, and the law may treat them &* it finds them. The 
 same observations apply to plate, or other furniture used l.\ ihe 
 importer. 
 
 So, if he sells by auction. Auctioneers are persons licensed by Uio 
 State, and if the importer chooses to empln\. them, he ..-in us Mil. 
 object to paying for this service, as for any other for \\hi.h he nmv 
 apply to an officer of the State. The right of sale may he very well 
 annexed to importation, without annexing to it, also, the privilege of 
 using the officers licensed by the State to make sides in n peenlinr 
 way. 
 
 The power to direct the removal of gunpowder is a lu:mrli ( .f Ihr 
 police power, which unquest.ionalily remains, and ought, to remain. 
 within the States. If the possessor stores it himself out of town, the 
 removal cannot be a duty on import.,, bee;iiiKc it. eontnlmles IK. thing 
 to the revenue. If he prefers placing it in a public maga/.ine, it in 
 because he stores it, there, in his own opinion, more iidvanl.i,"< "n !, 
 than elsewhere. We are not sure that, this may not. he elnnsed >nn 
 inspection !;;ws. Tlu- removal or destruction of in feel ion:: or un 
 sound articles is, undoubtedly, an exercise of that, power, and forniH 
 an express exception to the prohibition we are considering Indm-d,
 
 140 LIMITATIONS OF THE TAXING TOWER. 
 
 the laws of the United States expressly sanction the health laws of 
 a State. 
 
 The principle, then, for which the plaintiffs in error contend that 
 the importer acquires a right, not only to bring the articles into the 
 country, but to mix them with the common mass of property, does 
 not interfere with the necessary power of taxation which is acknowl- 
 edged to reside in the States, to that dangerous extent which the 
 counsel for the defendants in error seem to apprehend. It carries 
 the prohibition in the Constitution no farther than to prevent the 
 States from doing that which it was the great object of the Consti- 
 tution to prevent. 
 
 But, if it should be proved, that a duty on the article itself would 
 be repugnant to the Constitution, it is still argued, that this is not 
 a tax upon the article, but on the person. The State, it is said, may 
 tax occupations, and this is nothing more. 
 
 It is impossible to conceal from ourselves, that this is varying the 
 form, without varying the substance. It is treating a prohibition 
 which is general, as if it were confined to a particular mode of doing 
 the forbidden thing. All must perceive, that a tax on the sale of an 
 article, imported only for sale, is a tax on the article itself. It is 
 true, the State may tax occupations generally, but this tax must be 
 paid by those who employ the individual, or is a tax on his business. 
 The lawyer, the physician, or the mechanic, must either charge more 
 on the article in which he deals, or the thing itself is taxed through 
 his person. This the State has a right to do, because no constitu- 
 tional prohibition extends to it. So, a tax on the occupation of an 
 importer is, in like manner, a tax on importation. It must add to 
 the price of the article, and be paid by the consumer, or by the im- 
 porter himself, in like manner as a direct duty on the article itself 
 would be made. This the State has not a right to do, because it is 
 prohibited by the Constitution. 
 
 In support of the argument, that the prohibition ceases the instant 
 the goods are brought into the country, a comparison has been drawn 
 between the opposite words export and import. As, to export, it is 
 said, means only to carry goods out of the country; so, to import, 
 means only to bring them into it. But, suppose we extend this com- 
 parison to the two prohibitions. The States are forbidden to lay a 
 duty on exports, and the United States are forbidden to lay a tax 
 or duty on articles exported from any State. There is some diver- 
 sity in language, but none is perceivable in the act which is prohib- 
 ited. The United States have the same right to tax occupations 
 which is possessed by the States. Now, suppose the United States
 
 BROWtf V. MARYLAND. Ui 
 
 should require every exporter to take out a license, for which 
 he should pay such tax as Congress might think proper to impose; 
 would government be permitted to shield itself from the just censure 
 to which this attempt to evade the prohibitions of the Constitution 
 would expose it, by saying, that this was a tax on the person, not on 
 the article, and that the legislature had a right to tax occupations? 
 Or, suppose revenue cutters were to be stationed off the coast for the 
 purpose of levying a duty OP all merchandise found in vessels which 
 were leaving the United States for foreign countries ; would it be re- 
 ceived as an excuse for this outrage, were the government to say that 
 exportation meant no more than carrying goods out of the country, 
 and as the prohibition to lay a tax on imports, or things imported, 
 ceased the instant they were brought into the country, so the pro- 
 hibition to tax articles exported ceased when they were carried out of 
 the country? 
 
 We think, then, that the act under which the plaintiffs in error 
 were indicted, is repugnant to that article of the Constitution which 
 declares, that "no State shall lay any imposts or duties on imports or 
 exports." 
 
 2. It is also repugnant to that clause of the Constitution which 
 empowers "Congress to regulate commerce with foreign nations, and 
 among the several States, and with the Indian tribes?" 
 
 The oppressed and degraded state of commerce previous to the 
 adoption of the Constitution can scarcely be forgotten. It was regu- 
 lated by foreign nations with a single view to their own interests; 
 and our disunited efforts to counteract their restrictions were ren- 
 dered impotent by want of combination. Congress, indeed, possessed 
 the power of making treaties; but the inability of the federal gov- 
 ernment to enforce them had become so apparent as to render thai 
 power in a great degree useless. Those who felt the injury arising 
 from this state of things, and those who were capable of estimating 
 the influence of commerce on the prosperity of nations, perceived the 
 necessity of giving the control over this important subject to a sin- 
 gle government. It may be doubted whether any of the evils pro- 
 ceeding from the feebleness of the federal government, contributed 
 more to that great revolution which introduced the present system, 
 than the deep and general conviction, that commerce ought to be reg- 
 ulated by Congress. It is not, therefore, matter of surprise, that the 
 grant should be as extensive as the mischief, and should comprehend 
 all foreign commerce, and all commerce among the States. To con- 
 strue the power so as to impair its efficacy, would tend to defeat an 
 object, in the attainment of which the American public took, and
 
 142 LIMITATIONS OF THE TAXING POWEK. 
 
 justly took, that strong interest which arose from a full conviction 
 of its necessity. 
 
 What, then, is the just extent of a power to regulate commerce 
 with foreign nations, and among the several States? 
 
 This question was considered in the case of Gibbons v. Ogden, (9 
 Wheat. Rep. 1,) in which it was declared to be complete in itself, 
 and to acknowledge no limitations other than are prescribed by the 
 Constitution. The power is coextensive with the subject on which it 
 acts, and cannot be stopped at the external boundary of a State, but 
 must enter its interior. 
 
 We deem it unnecessary now to reason in support of these propo- 
 sitions. Their truth is proved by facts continually before our eyes, 
 and was, we think, demonstrated, if they could require demonstra- 
 tion, in the case already mentioned. 
 
 If this power reaches the interior of a State, and may be there 
 exercised, it must be capable of authorizing the sale of those articles 
 which it introduces. Commerce is intercourse: one of its most ordi- 
 nary ingredients is traffic. It is inconceivable, that the power to 
 authorize this traffic, when given in the most comprehensive terms, 
 with the intent that its efficiency should be complete, should cease at 
 the point when its continuance is indispensable to its value. To 
 what purpose should the power to allow importation be given, unac- 
 companied with the power to authorize a sale of the thing imported ? 
 Sale is the object of importation, and is an essential ingredient of 
 that intercourse, of which importation constitutes a part. It is as 
 essential an ingredient, as indispensable to the existence of the entire 
 thing, then, as importation itself. It must be considered as a com- 
 ponent part of the power to regulate commerce. Congress has a 
 right, not only to authorize importation, but to authorize the im- 
 porter to sell. 
 
 If this be admitted, and we think it cannot be denied, what can 
 be the meaning of an act of Congress which authorizes importation, 
 and offers the privilege for sale at a fixed price to every person who 
 chooses to become a purchaser? How is it to be construed, if an in- 
 tent to deal honestly and fairly, an intent as wise as it is moral, 
 is to enter into the construction? What can be the use of the con- 
 tract, what does the importer purchase, if he does not purchase the 
 privilege to sell? 
 
 What would be the language of a foreign government, which 
 should be informed that its merchants, after importing according to 
 law, were forbidden to sell the merchandise imported? What an- 
 swer would the United States give to the complaints and just re-
 
 BROWN V. MARYLAND. 143 
 
 preaches to which such an extraordinary circumstance would expose 
 them? No apology could be received, or even offered. Such a state 
 of things would break up commerce. It will not meet this argu- 
 ment, to say, that this state of things will never be produced; that 
 the good sense of the States is a sufficient security against it. The 
 Constitution has not confided this subject to that good sense. It is 
 placed elsewhere. The question is, where does the power reside? 
 not, how far will it be probably abused? The power claimed by the 
 State, is in its nature, in conflict with that given to Congress; and 
 the greater or less extent in which it may be exercised does not enter 
 into the inquiry concerning its existence. 
 
 We think, then, that if the power to authorize a sale exists in Con- 
 gress, the conclusion that the right to sell is connected with the law 
 permitting importation, as an inseparable incident, is inevitable. 
 
 If the principles we have stated be correct, the result to which' 
 they conduct us cannot be mistaken. Any penalty inflicted on the 
 importer for selling the article in his character of importer, must be 
 in opposition to the act of Congress which authorizes importation. 
 Any charge on the introduction and incorporation of the articles into 
 and with the mass of property in the country, must be hostile to the 
 power given to Congress to regulate commerce, since an essential 
 part of that regulation, and principal object of it, is to prescribe the 
 regular means for accomplishing that introduction and incorpora- 
 tion. 
 
 The distinction between a tax- on the thing imported, and on the 
 person of the importer, can have no influence on this part of the 
 subject. It is too obvious for controversy, that they interfere equally 
 with the power to regulate commerce. 
 
 It has been contended, that this construction of the power to reg- 
 ulate commerce, as was contended in construing the prohibition to 
 lay duties on imports, would abridge the acknowledged power of a 
 State to tax its own citizens, or their property within its territory. 
 
 We admit this power to be sacred; but cannot admit that it may 
 be used so as to obstruct the free course of a power given to Con- 
 gress. We cannot admit, that it may be used so as to obstruct or 
 defeat the power to regulate commerce. It has been observed, that 
 the powers remaining with the States may be so exercised as to come 
 in conflict with those vested in Congress. When this happens, that 
 which is not supreme must yield to that which is supreme. This 
 great and universal truth is inseparable from the nature of things, 
 and the Constitution has applied it to the often interfering powers 
 of the general and State governments, as a vital principle of perpet-
 
 144 LIMITATIONS OF THE TAXING POWEH. 
 
 ual operation. It results, necessarily, from this principle, that the 
 taxing power of the States must have some limits. It cannot reach 
 and restrain the action of the national government within its proper 
 sphere. It cannot reach the administration of justice in the Courts 
 of the Union, or the collection of the taxes of the United States, or 
 restrain the operation of any law which Congress may constitution- 
 ally pass. It cannot interfere with any regulation of commerce. If 
 the States may tax all persons and property found on their territory, 
 what shall restrain them from taxing goods in their transit through 
 the State from one port to another, for the purpose of re-exporta- 
 tion? The laws of trade authorize this operation, and general con- 
 venience requires it. Or what should restrain a State from taxing 
 any article passing through it from one State to another, for the 
 purpose of traffic? or from taxing the transportation of articles pass- 
 ing from the State itself to another State, for commercial purposes? 
 These cases are all within the sovereign power of taxation, but would 
 obviously derange the measures of Congress to regulate commerce, 
 and affect materially the purpose for which that power was given. 
 We deem it unnecessary to press this argument further, or to give 
 additional illustrations of it, because the subject was taken up, and 
 considered with great attention, in McCulloch v. The State of Mary- 
 land, (4 Wheat. Rep. 316,) the decision in which case is, we think, 
 entirely applicable to this. 
 
 It may be proper to add, that we suppose the principles laid down 
 in this case, to apply equally to importations from a sister State. 
 We do not mean to give any opinion on a tax discriminating between 
 foreign and domestic articles. 
 
 We think there is error in the judgment of the Court of Appeals 
 of the State of Maryland, in affirming the judgment of the Balti- 
 more City Court, because the act of the legislature of Maryland, im- 
 posing the penalty for which the said judgment is rendered, is re- 
 pugnant to the Constitution of the United States and, consequently, 
 void. The judgment is to be reversed, and the cause remanded to 
 that Court, with instructions to enter judgment in favour of the 
 appellants. 
 
 Mr. Justice THOMPSON dissented.
 
 COOK V. PENNSYLVANIA. 145 
 
 COOK V. PENNSYLVANIA. 
 
 Supreme Court of the United States. October, 1878. 
 97 United States, 566. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 The act of the legislature of Pennsylvania, of May 20, 1853, 
 (Pamphlet Laws, 683), declares that 
 
 "The State duty to be paid on sales by auction in the counties 
 of Philadelphia and Allegheny shall be on all domestic articles 
 and groceries, one-half of one per cent; on foreign drugs, glass, 
 earthenware, hides, marble-work, and dye-woods, three-quarters 
 of one per cent." 
 
 By the sixth section of the act of April 9, 1859, the law was mod- 
 ified, as follows: 
 
 "Said auctioneers shall pay into the treasury of the Common- 
 wealth a tax or duty of one-fourth of one per cent on all sales 
 of loans or stocks, and shall also pay into the treasury aforesaid 
 a tax or duty, as required by existing laws, on all other sales 
 to be made as aforesaid, except on groceries, goods, wares, and 
 merchandise of American growth or manufacture, real estate, 
 shipping, or live stock; and it shall be the duty of the auction- 
 eer having charge of such sales to collect and pay over to the 
 State treasurer the said duty or tax, and give a true and cor- 
 rect account of the same quarterly, under oath or affirmation, in 
 the form now required by law." Pamphlet Laws 436. 
 
 The effect of this legislation is, that by the first statute a discrim- 
 ination of one-fourth of one per cent is made against foreign goods 
 sold by auction; and by the last statute, while all sales of foreign or 
 imported goods are taxed, those arising from groceries, goods, wares, 
 and merchandise of American growth or manufacture are exempt 
 from such law. 
 
 It appears that the law also required these auctioneers to take out 
 a license, to make report of such sales, and to pay into the treasury 
 the taxes on these sales. 
 
 The defendant refused to pay the tax for which he was liable un- 
 der this law, for the sale of goods which had been imported and 
 which he had sold for the importers in the original packages. In 
 the suit, in which judgment was rendered against him in the Su- 
 preme Court of Pennsylvania, he defended himself on the ground 
 10
 
 146 LIMITATIONS OF THE TAXING POWER. 
 
 that these statutes were void, because forbidden by sects. 8 and 10 
 of art. 1 of the Constitution of the United States. 
 
 The clauses referred to are those which give to Congress power to 
 regulate commerce with foreign nations, and forbid a State, without 
 the consent of Congress, to levy any imposts or duties on imports. 
 The case stated shows that the goods sold by defendant were import- 
 ed goods, and that they were sold by him in the packages in which 
 they were originally imported. It is conceded by the Attorney-Gen- 
 eral of the State, that if the statute we have recited is a tax on 'these 
 imports, it is justly obnoxious to the objection taken to it. 
 
 But it is argued that the authority of the auctioneer to make any 
 sales is derived from the State, and that the State can, therefore, 
 impose upon him a tax for the privilege conferred, and that the mode 
 adopted by the statute of measuring that tax is within the power of 
 the State. That being a tax on him for the right or privilege to sell 
 at auction, it is not a tax on the article sold, but the amount of the 
 sales made by him is made the measure of the tax on that privilege. 
 In support of this view, it is said that the importer could himself 
 have made sale of his goods without subjecting the sale to the tax. 
 The argument is fallacious, because without an auctioneer's license 
 he could not have sold at auction even his own goods. If he had 
 procured, or could have procured, a license, he would then have been 
 subject by the statute to the tax, for it makes no exception. By the 
 express language of the statute, the auctioneer is to collect this tax 
 and pay it into the treasury. From whom is he to collect it if not 
 from the owner of the goods? If the tax was intended to be levied 
 on the auctioneer, he would not have been required first to collect 
 it and then pay it over. It was, then, a tax on the privilege of sell- 
 ing foreign goods at auction, for such goods could only be sold at 
 auction by paying the tax on the amount of the sales. 
 
 The question as thus stated has long ago and frequently been de- 
 cided by this court. 
 
 In the Passenger Cases (7 How. 283), a statute of New York was 
 the subject of consideration, which required an officer of the city of 
 New York, called the health commissioner, to collect from the mas- 
 ter of every vessel from a foreign port, for himself and each cabin 
 passenger on board his vessel, one dollar and fifty cents, and for each 
 steerage passenger, mate, sailor, or mariner, one dollar. A statute 
 of the State of Massachusetts was also considered, which enacted 
 that no alien passengers (other than certain diseased persons and 
 paupers, provided for in a previous section) should be permitted to 
 land until the master, owner, consignee, or agent of such vessel
 
 COOK V. PENNSYLVANIA. 147 
 
 should pay to the regularly appointed boarding officers the sum of 
 two dollars for each passenger so landing. In both instances, al- 
 though the master or the owner of the vessel was made to pay the 
 sum demanded, it was held to be a tax on the passengers. It was he 
 whose loss it was when paid, and the burden rested ultimately and 
 solely on him. Mr. Chief Justice Taney says: "It is demanded of 
 the captain, and not from every separate passenger, for the conve- 
 nience of collection. But the burden evidently falls on the passen- 
 ger, and he, in fact, pays it, either in the enhanced price of his pas- 
 sage, or directly to the captain, before he is allowed to embark for 
 the voyage." Because it was such a tax, the majority of the court 
 held it to be unconstitutional and void. 
 
 In the case of Crandall v. State of Nevada, (6 Wall. 35), the 
 State had passed a law requiring those in charge of all the stage- 
 coaches and railroads doing business in the State to make report of 
 every passenger who passed through the State or went out of it by 
 their conveyances, and to pay a tax of one dollar for every such pas- 
 senger. The argument was urged there, that the tax was laid on 
 the business of the railroad and stage-coach companies, and the sum 
 of one dollar exacted for each passenger was only a mode of measur- 
 ing the business to be taxed. But the court said, as in Passenger 
 Cases, that it was a tax which must fall on the passenger, and be 
 paid by him for the privilege of riding through the State by the 
 usual vehicles of travel. 
 
 
 
 In Henderson v. The Mayor (92 U. S. 259), where the owners of 
 vessels from a foreign port were required to give a bond, as security, 
 that every passenger whom they landed should not become a burden 
 on the State, or pay for every such passenger a fixed sum, it was 
 held to be in effect a tax of that sum on the passenger, however dis- 
 guised by the alternative of a bond which would never be given. The 
 court said, that "in whatever language a statute may be framed, its 
 purpose must be determined by its natural and reasonable effect; and 
 if it is apparent that the object of this statute, as judged by that 
 criterion, is to compel the owners of vessels to pay a sum of money 
 for every passenger brought by them from a foreign shore and land- 
 ed at the port of New York, it is as much a tax on passengers, if 
 collected from them, or a tax on the vessel owner for the exercise of 
 the right of landing their passengers in that city, as was the statute 
 held void in the Passenqer Cases." 
 
 To the same effect, and probably more directly in point, is tho 
 case of Welton v. State of Missouri (91 id. 275), decided at the same
 
 148 LIMITATIONS OF THE TAXING POWER. 
 
 term. In that case, pedlers were required, under a severe penalty, to 
 take out a license ; and those only were held to be pedlers who dealt in 
 goods, wares, and merchandise which were not of the growth, pro- 
 duce, or manufacture of the State. The court, after referring to the 
 case of Brown v. Maryland, relied on by defendant here, adds: "So, 
 in like manner, the license tax exacted by the State of Missouri from 
 dealers in goods which are not the product of manufacture of the 
 State, before they can be sold from place to place within the State, 
 must be regarded as a tax upon such goods themselves and the ques- 
 tion presented is, whether legislation, thus discriminating against the 
 products of other States in the conditions of their sale by a certain 
 class of dealers, is valid under the Constitution of the United 
 States." And it was decided that it was not. See also Waring v. The 
 Mayor, 8 Wall. 110. 
 
 The tax on sales made by an auctioneer is a tax on the goods sold, 
 within the terms of this last decision, and, indeed, within all the 
 cases cited; and when applied to foreign goods sold in the original 
 packages of the importer, before they have become incorporated into 
 the general property of the country, the law imposing such tax is 
 void as laying a duty on imports. 
 
 In Woodruff v. Parham (8 Wall. 123) and Hinson v. Lott (id. 
 128), it was held that a tax laid by a law of the State in such a 
 manner as to discriminate unfavorably against goods which were the 
 product or manufacture of another State, was a regulation of com- 
 merce between the States, forbidden by the Constitution of the Unit- 
 ed States. The doctrine is reasserted in the case of Welton v. State 
 of Missouri, supra. The Congress of the United States is granted 
 the power to regulate commerce with foreign nations in precisely the 
 same language as it is that among the States. If a tax assessed by 
 a State injuriously discriminating against the products of a State of 
 the Union is forbidden by the Constitution, a similar tax against 
 goods imported from a foreign State is equally forbidden. 
 
 A careful reader of the history of the times which immediately 
 preceded the assembling of the convention that framed the Ameri- 
 can Constitution cannot fail to discover that the need of some equi- 
 table and just regulation of commerce was among the most influen- 
 tial causes which led to its meeting. States having fine harbors im- 
 posed unlimited tax on all goods reaching the Continent through 
 their ports. The ports of Boston and New York were far behind 
 Newport, in the State of Ehode Island, in the value of their im- 
 ports; and that small State was paying all the expenses of her gov- 
 ernment by the duties levied on the goods landed at her principal
 
 COOK V. PENNSYLVANIA. 149 
 
 port. And so reluctant was she to give up this advantage, that she 
 refused for nearly three years after the other twelve original States 
 had ratified the Constitution, to give it her assent. 
 
 In granting to Congress the right to regulate commerce with for- 
 eign nations, and among the several States, and with the Indian 
 tribes, and in forbidding the States without the consent of that 
 body to levy any tax on imports, the framers of the Constitution be- 
 lieved that they had sufficiently guarded against the dangers of any 
 taxation by the States which would interfere with the freest inter- 
 change of commodities among the people of the different States, and 
 by the people of the States with citizens and subjects of foreign gov- 
 ernments. 
 
 The numerous cases in which this court has been called on to de- 
 clare void statutes of the States which in various ways have sought 
 to violate this salutary restriction, show the necessity and value of 
 the constitutional provision. If certain States could exercise the un- 
 limited power of taxing all the merchandise which passes from the 
 port of New York through those States to the consumers in the 
 great West, or could tax as ha? been done until recently every 
 person who sought the seaboard through the railroads within their 
 jurisdiction, the Constitution would have failed to effect one of the 
 most important purposes for which it was adopted. 
 
 A striking instance of the evil and its cure is to be seen in the 
 recent history of the States now composing the German Empire. A 
 few years ago they were independent States, which, though lying 
 contiguous, speaking a common language, and belonging to a com- 
 mon race, were yet without a common government. 
 
 The number and variety of their systems of taxation and lines of 
 territorial division necessitating customs officials at every step the 
 traveller took or merchandise was transported, became so intolerable, 
 that a commercial, though not a political union was organized, called 
 the German Zollverein. The great value of this became so apparent, 
 and the community of interests so strongly felt in regard to com- 
 merce and traffic, that the first appropriate occasion was used by 
 these numerous principalities to organize a common political gov- 
 ernment now known as the German Empire. 
 
 While there is, perhaps, no special obligation on this court to de- 
 fend the wisdom of the Constitution of the United States, there is 
 the duty to ascertain the purpose of its provisions, and to give them 
 full effect when called on by a proper case to do so. 
 
 The judgment of the Supreme Court of Pennsylvania will be re- 
 versed, and the case remanded for further proceedings, in conform- 
 ity with this opinion; and it is So ordered.
 
 150 LIMITATIONS OF THE TAXING POWER. 
 
 WARING V. THE MAYOR. 
 
 Supreme Court of the United States. December, 1868. 
 8 Wallace, 110. 
 
 Mr. Justice CLIFFORD delivered the opinion of the court. 
 
 Merchants and traders, engaged in selling merchandise in the city 
 of Mobile in the State of Alabama, are required by an ordinance 
 passed by the corporate authorities to pay a tax to the city equal to 
 one-half of one per cent, on the gross amount of their sales, whether 
 the merchandise was sold at private sale or at public auction; and if 
 they were not so engaged the six months next preceding the 1st day 
 of April, 1866, they were also required, within fifteen days thereafter 
 to return, under oath, to the collector of taxes, the gross amount of 
 their sales during that period of time; and the provision was, that 
 if any such merchant or trader neglected or failed to make such 
 return, he should be subject to such a fine, not exceeding fifty dol- 
 lars per day, as the mayor of the city might impose for each day's 
 failure or refusal. 
 
 Sales of merchandise were made by the complainant within that 
 period to a large amount, and he was duly notified that he was re- 
 quired to make return, under oath, of the gross amount of such sales, 
 and having neglected and refused to comply with that requirement 
 within the time specified in the ordinance, the mayor of the city 
 caused a summons to be issued and duly served, commanding the 
 complainant to appear before him, as such mayor, to answer for such 
 neglect, but he refused to obey the commands of the summons, and 
 thereupon a warrant was issued, and he was arrested and brought 
 before the mayor to answer for such contempt; and, after hearing, 
 he was sentenced to pay a fine of fifty dollars for a breach of the 
 before-mentioned ordinance. Subsequently, a second notice of a sim- 
 ilar character was given, and the complainant still neglecting and 
 refusing to make the required returns, he was again summoned to 
 appear before the mayor to answer for the neglect, but he refused a 
 second time to obey the commands of the precept, and, thereupon, 
 such proceedings were had that he was again found guilty of con- 
 tempt and was sentenced to pay an additional fine of fifty dollars. 
 
 Regarding these proceedings as unwarranted, the complainant filed 
 a bill in equity against the mayor and tax-collector of the city, in 
 the local Chancery Court, in which he prayed that the respondents 
 might be enjoined from collecting the fines adjudged against him, 
 and from any attempt to collect the tax, and that the tax might be
 
 WARING V. THE MAYOR. 151 
 
 adjudged to be null and void. Proofs were taken and the parties 
 \^ere heard, and the final decree of the Chancellor was, that the com- 
 plainant was entitled to the relief asked, and that the injunction 
 should be made perpetual; but that decree, on the appeal of the re- 
 spondents to the Supreme Court of the State, was, in all things, re- 
 versed, and the Supreme Court entered a decree that the bill of com- 
 plaint should be dismissed. Whereupon the complainant in the 
 Chancery Court sued out a writ of error, under the 25th section of 
 the Judiciary Act, and removed the cause into this court. 
 
 Exemption from State taxation in this case is claimed by com- 
 plainant upon the ground that the sales made by h'im were of mer- 
 chandise, in the original packages, as imported from a foreign coun- 
 try, and which was purchased by him, in entire cargoes, of the con- 
 signees of the importing vessels before their arrival, or while the ves- 
 sels were in the lower harbor of the port. 
 
 Whether the contracts to purchase were made before or after the 
 vessel arrived in the bay is quite immaterial, as the agreement was, 
 that the risk should continue to be in the owner or consignees until 
 they delivered the salt into the complainant's lighters, alongside of 
 the vessel. Delivery, under the terms of the contract, could not bo 
 made before the vessel arrived, nor before the salt was legally en- 
 tered at the custom-house, as the hatches could not be removed for 
 any such purpose until the permit was received from the collector. 
 
 Undoubtedly goods at sea may be sold by the consignees to arrive, 
 and if they indorse and deliver the bill of lading to the purchaser, 
 and he accepts the same under the contract as the proper substitute 
 for the actual delivery and acceptance of the goods, the effect of the 
 transaction is to vest a perfect title in the purchaser, discharged of 
 all right of stoppage in transitu on the part of the vendor and in- 
 dorser of the bill of lading. 
 
 Nothing of the kind, however, was done in this case. On the con- 
 trary, the agreement was, that the loss, if before the delivery of the 
 goods into the lighters, should fall on the shippers. Influenced by 
 these considerations the court is of the opinion that the shippers or 
 consignees were the importers of the salt, and that the complainant 
 was the purchaser of the importers, and the second vendor of th 
 imported merchandise. 
 
 Congress has the power to regulate commerce with foreign nations 
 and among the several States, and with the Indian tribes, and the 
 Constitution also provides that no State shall, without the consent
 
 152 LIMITATIONS OF TJLK TAXING POWER. 
 
 of the Congress, lay any impost? or duties on imports or exports, ex- 
 cept what may be absolutely necessary for executing its inspection 
 laws, with a view to raise a revenue for State purposes. The State 
 of Maryland passed a law requiring all importers of foreign arti- 
 cles, enumerated in the law, and other persons selling the same by 
 wholesale, before they should be authorized to sell the imported arti- 
 cles, to take a license, for which they were required to pay fifty dol- 
 lars, and in case of refusal or neglect, the provision was, that they 
 should forfeit the amount of the license tax and be subject to a fine 
 of one hundred dollars. (Brown v. Maryland, 12 Wheaton, 437.) 
 Subsequently an importing merchant, resident in the State, refused 
 to pay the tax, and the State Court sustained the validity of the 
 State law, and imposed on him the penalty therein prescribed. Dis- 
 satisfied with the judgment he removed the cause into this court by 
 writ of error, and this court held, Marshall, C. J., giving the opin- 
 ion of the court, that the State law was a tax on imports, and that 
 the mode of levying it, as by a tax on the occupation of the im- 
 porter, merely varied the form in which the tax was imposed without 
 varying the substance; that while the articles imported remained the 
 property of the importer in his warehouse in the original forms or 
 packages in which they were imported, a tax upon them was too 
 plainly a duty on imports to escape the prohibition of the Constitu- 
 tion, but the court admitted that whenever the importer had so acted 
 upon the thing imported that it has become incorporated and mixed 
 with the mass of property in the country, it must be considered as 
 having lost its distinctive character as an import, and as having be- 
 come subject to the taxing power of the State. 
 
 Sales by the importer are held to be exempt from State taxation 
 because the importer purchases, by the payment of the duty, a right 
 to dispose of the merchandise as well as to bring it into the coun- 
 try, and because the tax, if it were held to be valid, would intercept 
 the import, as an import, in the way to become incorporated with 
 the general mass of property, and would deny it the privilege of be- 
 coming so incorporated until it should have contributed to the rev- 
 enue of the State. (Brown v. Maryland, 12 Wheaton, 443; Almy v. 
 California, 24 Howard, 173.) 
 
 But the sales of the goods imported in this case were made by the 
 shippers or consignees, and the complainant was the purchaser, and 
 not the first vendor of the imported merchandise, and it is settled 
 law in this court that merchandise in the original packages once 
 sold by the importer is taxable as other property. (Pervear v. Com- 
 monwealth, 5 Wallace, 479.)
 
 WOODRUFF V. PARHAM. 153 
 
 When the importer sells the imported articles, or otherwise mixes 
 them with the general property of the State by breaking up the 
 packages, the state of things changes, as was said by this court in 
 the leading case, as the tax then finds the articles already incorpo- 
 rated with the mass of property by the act of the importer. 
 
 Importers selling the imported articles in the original packages are 
 shielded from any such State tax, but the privilege of exemption is 
 not extended to any purchaser, as the merchandise, by the sale and 
 delivery, loses its distinctive character as an import, 
 
 Decree affirmed. 
 
 Original packages are the boxes or cases in which the goods are shipped 
 and not the packages in which goods are placed by mak*er, and which are sur- 
 rounded by an outer case. May v. New Orleans 178 U. S., 496. 
 
 WOODRUIFF V. PARHAM. 
 
 Supreme Court of the United States. December, 1868. 
 8 Wallace, 123. 
 
 Error to the Supreme Court of Alabama. The case being thus: 
 
 The Constitution thus ordains: 
 
 "Congress shall have power to regulate commerce with foreign 
 nations and among the several States." 
 
 "No State shall levy any imposts or duties on imports or 
 exports." 
 
 "The citizens of each State shall be entitled to all the immuni- 
 ties and privileges of citizens of the several States." 
 
 With these declarations of the Constitution in force, the city of 
 Mobile, Alabama, in accordance with a provision in its charter, au- 
 thorized the collection of a tax for municipal purposes on real and 
 personal estate, sales at auction, and sales of merchandise, capital 
 employed in business and income within the city. This ordinance 
 being on the city statute book, Woodruff and others, auctioneers, re- 
 ceived, in the course of their business for themselves, or as consign- 
 ees and agents for others, large amounts of goods and merchandise, 
 the product of States other than Alabama, and sold the same in 
 Mobile to purchasers in the original and unbroken packages. There- 
 upon, the tax collector for the city, demanded the tax levied by the 
 ordinance. Woodruff refused to pay the tax, asserting that it was 
 repugnant to the above-quoted provisions of the Constitution. The 
 question coming finally, on a case stated, in to the Supreme Court
 
 154 LIMITATIONS OF THE TAXING POWEE. 
 
 of the State, where the first two of the above-quoted provisions of 
 the Constitution were relied on by the auctioneers as a bar to the 
 suit, and said court decided in favor of the tax. And the question 
 was now here for review. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 
 The case was heard in the courts of the State of Alabama upon 
 an agreed statement of facts, and that statement fully raises the 
 question whether merchandise brought from other States and sold, 
 under the circumstances stated, comes within the prohibition of the 
 Federal Constitution, that no State shall, without the consent of 
 Congress, levy any imposts or duties on imports o*r exports. And it 
 is claimed that it also brings the case within the principles laid 
 down by this court in Brown v. Maryland. (12 Wheaton 419). 
 
 That decision has been recognized for over forty years as gov- 
 erning the action of this court in the same class of cases, and its 
 reasoning has been often cited and received with approbation in oth- 
 ers to which it was applicable. We do not now propose to question 
 its authority or to depart from its principles. 
 
 The tax of the State of Maryland, which was the subject of con- 
 troversy in that case, was limited by its terms to importers of for- 
 eign articles or commodities, and the proposition that we are now 
 to consider is whether the provision of the Constitution to which 
 we have referred extends, in its true meaning and intent, to articles 
 brought from one State of the Union into another. 
 
 The words impost, imports, and exports are frequently used in the 
 Constitution. They have a necessary correlation, and when we have 
 a clear idea of what either word means in any particular connection 
 in which it may be found, we have one of the most satisfactory tests 
 of its definition in other parts of the same instrument. 
 
 In the case of Brown v. Maryland, the word imports, as used in 
 the clause now under consideration, is defined, both on the authority 
 of the lexicons and usage, to be articles brought into the country; 
 and impost is there said to be a duty, custom or tax levied on arti- 
 cles brought into the country. In the ordinary use of these terms 
 at this day, no one would, for a moment, think of them as having 
 relation to any other articles than those brought from a country for- 
 eign to the United States, and at the time the case of Brown v. 
 Maryland was decided namely, in 1827 it is reasonable to sup- 
 pose the general usage was the same, and that in defining imports aa 
 articles brought into the country, the Chief Justice used the word 
 country as a synonyme for United States.
 
 WOODRUFF V. PARHAM. 155 
 
 But the word is susceptible of being applied to articles introduced 
 from one State into another, and we must inquire if it was so used 
 by the framers of the Constitution. 
 
 Leaving, then, for a moment, the clause of the Constitution under 
 consideration, we find the first use of any of these correlative terms 
 in that clause of the eighth section of the first article, which begins 
 the enumeration of the powers confided to Congress. 
 
 "The Congress shall have power to levy and collect taxes, duties, 
 imposts, and excises, . . . but all duties, imposts and excises 
 shall be uniform throughout the United States." 
 
 Is the word impost, here used, intended to confer upon Congress a 
 distinct power to levy a tax upon all goods or merchandise carried 
 from one State into another? Or is the power limited to duties on 
 foreign imports? If the former be intended, then the power con- 
 ferred is curiously rendered nugatory by the subsequent clause of the 
 ninth section, which declares that no tax shall be laid on articles ex- 
 ported from any State, for no article can be imported from one State 
 into another which is not, at the same time, exported from the for- 
 mer. But if we give to the word imposts, as used in the first-men- 
 tioned clause, the definition of Chief Justice Marshall, and to the 
 word export the corresponding idea of something carried out of the 
 United States, we have, in the power to lay duties on imports from 
 abroad, and the prohibition to lay such duties on exports to other 
 countries, the power and its limitations concerning imposts. 
 
 It is also to be remembered that the Convention was here giving 
 the right to lay taxes by National authority in connection with pay- 
 ing the debts and providing for the common defence and the general 
 welfare, and it is a reasonable inference that they had in view, in 
 the use of the word imports, those articles, which, being introduced 
 from other nations and diffused generally over the country for con- 
 sumption, would contribute, in a common and general way, to the 
 support of the National government. If internal taxation should be- 
 come necessary, it was provided for by the terms taxes and excises. 
 
 There are two provisions of the clause under which exemption 
 from State taxation is claimed in this case, which are not without 
 influence on that prohibition, namely: that any State may, with the 
 assent of Congress, lay a tax on imports, and that the net produce 
 of such tax shall be for the benefit of the Treasury of the United 
 States. The framers of the Constitution, claiming for the General 
 Government, as they did, all the duties on foreign goods imported 
 into the country, might well permit a State that wished to tax more 
 heavily than Congress did, foreign liquors, tobacco, or other articles
 
 156 LIMITATIONS OF THE TAXING POWER. 
 
 injurious to the community, or which interfered with their domestic 
 policy, to do so, provided such tax met the approbation of Congress, 
 and was paid into the Federal treasury. But that it was intended 
 to permit such a tax to be imposed by such authority on the products 
 of neighboring States for the use of the Federal government, and 
 that Congress, under this temptation, was to arbitrate between the 
 State which proposed to levy the tax and those which opposed it, 
 seems altogether improbable. 
 
 Yet this must be the construction of the clause in question if it 
 has any reference to goods imported from one State to another. 
 
 If we turn for a moment from the consideration of the language 
 of the Constitution to the history of its formation and adoption, we 
 shall find additional reason to conclude that the words imports and 
 imposts were used with exclusive reference to articles imported from 
 foreign countries. 
 
 Section three, article six, of the Confederation provided that no 
 State should lay imposts or duties which might interfere with any 
 stipulation in treaties entered into by the United States; and sec- 
 tion one, article nine, that no treaty of commerce should be made 
 whereby the legislative power of the respective States should be re- 
 strained from imposing such imposts and duties on foreigners as their 
 own people were subjected to, or, from prohibiting the exportation 
 or importation of any species of goods or commodities whatsoever. 
 In these two articles of the Confederation, the words imports, ex- 
 ports, and imposts are used with exclusive reference to foreign trade, 
 because they have regard only to the treaty-making power of the 
 federation. 
 
 As soon as peace was restored by the success of the Eevolution, 
 and commerce began to revive, it became obvious that the most eli- 
 gible mode of raising revenue for the support of the General Govern- 
 ment and the payment of its debts was by duties on foreign mer- 
 chandise imported into the country. The Congress accordingly rec- 
 ommended the States to levy a duty of five per cent, on all such 
 imports, for the use of the Confederation. To this, Rhode Island, 
 which, at that time, was one of the largest importing States, object- 
 ed, and we have a full report of the remonstrance addressed by a 
 committee of Congress to that State on that subject. (1 Elliot's 
 Debates, 131-3.) And the discussions of the Congress of that day, 
 as imperfectly as they have been preserved, are full of the subject of 
 the injustice done by the .States who had good sea ports, by duties 
 levied in those ports on foreign goods designed for States who had 
 no such ports.
 
 WOODRUFF V. PARHAM. 1:,; 
 
 In this state of public feeling in this matter, the Constitutional 
 Convention assembled. 
 
 Its very first grant of power to the new government about to be 
 established, was to lay and collect imposts or duties on foreign goods 
 imported into the country, and among its restraints upon the States 
 was the corresponding one that they should lay no duties on imports 
 or exports. Jt seems, however, from Mr. Madison's account of the 
 debates, that while the necessity of vesting in Congress the power to 
 levy duties on foreign goods was generally conceded, the right of the 
 States to do so likewise was not given up without discussion, and was 
 finally yielded with the qualification to which we have already re- 
 ferred, that the States might lay such duties with the assent of Con- 
 gress. Mr. Madison moved that the words "nor lay imposts or du- 
 ties on imports" be placed in that class of prohibitions which were 
 absolute, instead of those which were dependent on the consent of 
 Congress. His reason was that the States interested in this power, 
 (meaning those who had good seaports), by which they could tax 
 the imports of their neighbors passing through their markets, were 
 a majority, and could gain the consent of Congress to the injury of 
 Xew Jersey, North Carolina, and other non importing States. But 
 his motion failed. {5 Madison Papers, 486.) In the Convention of 
 Virginia, called to adopt the Constitution, that distinguished ex- 
 pounder and defender of the instrument, so largely the work of his 
 own hand, argued, in support of the authority to lay direct taxes, 
 that without this power, a disproportion of burden would be im- 
 posed on the Southern States, because having fewer manufactures, 
 they would consume more imports and pay more of the imposts. (3 
 Elliot's Debates, 248.) So, in defending the clause of the Constitu- 
 tion now under our consideration, he says: "Some States export the 
 produce of other States. Virginia exports the produce of North 
 Carolina; Pennsylvania those of New Jersey and Delaware; and 
 Rhode Island, those of Connecticut and Massachusetts. The export- 
 ing States wished to retain the power of laying duties on exports to 
 enable them to pay expenses incurred. The States whose produce 
 was exported by other States, were extremely jealous lest a contribu- 
 tion should be raised of them by the exporting States, by laying 
 heavy duties on their own commodities. If this clause be fully con- 
 sidered it will be found to be more consistent with justice and equity 
 than any other practicable mode; for, if the States had the exclusive 
 imposition of duties on exports, they might raise d. heavy contribu- 
 tion of the other States for their own exclusive emoluments." (2 id. 
 443-4.) Similar observations, from the same source are found in
 
 158 LIMITATIONS OF THE TAXING POWER. 
 
 the 42d number of the Federalist, but with more direct reference to 
 the power to regulate commerce. 
 
 Governor Ellsworth, in opening the debate of the Connecticut 
 Convention on the adoption of the Constitution, says: "Our being 
 tributary to our sister States, is in consequence of the want of a 
 Federal system. The State of New York raises 60,000 or 80,000 
 in a year by impost. Connecticut consumes about one-third of the 
 goods upon which this impost is laid, and consequently pays one- 
 third of this sum to New York. 
 
 "If we import by the medium of Massachusetts, she has an impost, 
 and to her we pay tribute." (2 Elliot's Debates, 192.) A few 
 days later, he says: "I find, on calculation, that a general impost 
 of five per cent, would raise a sum of 245,000," and adds; "it is a 
 strong argument in favor of an impost, that the collection of it will 
 interfere less with the internal police of the States than any other 
 species of taxation. It does not fill the country with revenue offi- 
 cers, but is confined to the seacoast, and is chiefly a water operation. 
 
 If we do not give it to Congress, the individual States 
 
 will have it." (2 Id. 196.) 
 
 It is not too much to say that, so far as our research has ex- 
 tended, neither the word export, import, or impost is to be found in 
 the discussions on this subject, as they have come down to us from 
 that time, in reference to any other than foreign commerce, without 
 some special form of words to show that foreign commerce is not 
 meant. The only allusion to imposts in the Articles of Confedera- 
 tion is clearly limited to duties on goods imported from foreign 
 States. Where ever we find the grievance to be remedied by this 
 provision of the Constitution alluded to, the duty levied by the 
 States on foreign importations is alone mentioned, and the advan- 
 tages to accrue to Congress from the power confided to it, and with- 
 held from the States, is always mentioned with exclusive reference 
 to foreign trade. 
 
 Whether we look, then, to the terms of the clause of the Consti- 
 tution in question, or to its relation to the other parts of that instru- 
 ment, or to the history of its formation and adoption, or to the com- 
 ments of the eminent men who took part in those transactions, we 
 are forced to the conclusion that no intention existed to prohibit, by 
 this clause, the right of one State to tax articles brought into it 
 from another. If we examine for a moment the results of an oppo- 
 site doctrine, we shall be well satisfied with the wisdom of the Con- 
 stitution as thus construed. 
 
 The merchant of Chicago who buys his goods in New York and
 
 WOODRUFF V. PARHAM. 159 
 
 sells at wholesale in the original packages, may have his millions em- 
 ployed in trade for half a life time and escape all State, county, and 
 city taxes; for all that he is worth is invested in goods which he 
 claims to be protected as imports from New York. Neither the 
 State nor the city which protects his life and property can make him 
 contribute a dollar to support its government, improve its thorough- 
 fares or educate its children. The merchant in a town in Massa- 
 chusetts, who deals only in wholesale, if he purchases his goods in 
 Xew York, is exempt from taxation. If his neighbor purchases in 
 Boston, he must pay all the taxes which Massachusetts levies with 
 equal justice on the property of all its citizens. 
 
 These cases are merely mentioned as illustrations. But it is ob- 
 vious that if articles brought from one State into another are ex- 
 empt from taxation, even under the limited circumstances laid down 
 in the case 'of Brown v. Maryland, the grossest injustice must pre- 
 vail, and equality of public burdens in all our large cities is impossi- 
 ble. 
 
 It is said, however, that, as a court, we are bound, by our former 
 decisions, to a contrary doctrine, and we are referred to the cases 
 of Almy v. State of California and Brown v. Maryland, in support 
 of the assertion. 
 
 The case first mentioned arose under a statute of California, which 
 imposed a stamp tax on bills of lading for the transportation of gold 
 and silver from any point within the State to any point without the 
 State. 
 
 The master of the ship Rattler was fined for violating this law, by 
 refusing to affix a stamp to a bill of lading for gold shipped on 
 board his vessel from San Francisco to New York. It seems to have 
 escaped the attention of counsel on both sides, and of the Chief Jus- 
 tice who delivered the opinion, that the case was one of inter-state com- 
 merce. No distinction of the kind is taken by counsel, none alluded 
 to by the court, except in the incidental statement of the termini of 
 the voyage. In the language of the court, citing Brown v. Mary- 
 land, as governing the case, the statute of Maryland is described as 
 a tax on foreign articles and commodities. The only question dis- 
 cussed by the court is, whether the bill of lading was so intimately 
 connected with the articles of export described in it that a tax on it 
 was a tax on the articles exported. And, in arguing this proposi- 
 tion, the Chief Justice says that "a bill of lading, or some equivalent 
 instrument of writing, is invariably associated with every cargo of 
 merchandise exported to a foreign country, and consequently a duty 
 upon that is, in substance and effect, a duty on the article exported."
 
 160 LIMITATIONS OF THE TAXING POWER. 
 
 It is impossible to examine the opinion without perceiving that the 
 mind of the writer was exclusively directed to foreign commerce, and 
 there is no reason to suppose that the question which we have dis- 
 cussed was in his thought. We take it to be a sound principle, that 
 no proposition of law can be said to be overruled by a court, which 
 was not in the mind of the court when the decision was made. (The 
 Victory, 6 Wallace, 382.) 
 
 The case, however, was well decided on the ground taken by Mr. 
 Blair, counsel for defendant, namely: that such a tax was a regula- 
 tion of commerce, a tax imposed upon the transportation of goods 
 from one State to another, over the high seas, in conflict with that 
 freedom of transit of goods and persons between one State and an- 
 other, which is within the rule laid down in Crandall v. Nevada, 
 (Ib. 35,) and with the authority of Congress to regulate commerce 
 among the States. We do not regard it, therefore, as opposing the 
 views which we have announced in this case. 
 
 The case of Brown v. Maryland, as we have already said, arose 
 out of a statute of that State, taxing, by way of discrimination, im- 
 porters who sold, by wholesale, foreign goods. 
 
 Chief Justice Marshall, in delivering the opinion of the court, dis- 
 tinctly bases the invalidity of the statute, (1) On the clause of the 
 Constitution which forbids a State to levy imposts or duties on im- 
 ports; and (2). That which confers on Congress the power to regu- 
 late commerce with foreign nations, among the States, and with the 
 Indian tribes. 
 
 The casual remark, therefore, made in the close of the opinion, 
 "that we suppose the principles laid down in this case to ap- 
 ply equally to importations from a sister State," can only be received 
 as an intimation of what they might decide if the case ever came 
 before them, for no such case was then to be decided. It is not, there- 
 fore a judicial decision of the question, even if the remark was in- 
 tended to apply to the first of the grounds on which that decision 
 was placed. 
 
 But the opinion in that case discusses, as we have said, under two 
 distinct heads, the two clauses of the Constitution which he supposed 
 to be violated by the Maryland statute, and the remark above quoted 
 follows immediately the discussion of the second proposition, or the 
 applicability of the commerce clause to that case. 
 
 If the court then meant to say that a tax levied on goods from a 
 sister State which was not levied on goods of a similar character pro- 
 duced within the State, would be in conflict with the clause of the 
 Constitution giving Congress the right "to regulate commerce among
 
 WOODRUFF V. PARHAM. 161 
 
 the States," as much as the tax on foreign goods, then under con- 
 sideration, was in conflict with the authority "to regulate commerce 
 with foreign nations," we agree to the proposition. 
 
 It may not be inappropriate here to refer to the License Cases, (5 
 Howard, 504.) 
 
 The separate and diverse opinions delivered by the judges on that 
 occasion leave it very doubtful if any material proposition was de- 
 cided, though the precise point we have here argued was before the 
 court and seemed to require solution. But no one can read the 
 opinions which were delivered without perceiving that none of them 
 held that goods imported from one State into another are within the 
 prohibition to the States to levy taxes on imports, and the language 
 of the Chief Justice and Judge McLean leave no doubt that their 
 views are adverse to the proposition. 
 
 We are satisfied that the question, as a distinct proposition neces- 
 sary to be decided, is before the court now for the first time. 
 
 But, we may be asked, is there no limit to the power of the States 
 to tax the produce of their sister States brought within their bor- 
 ders? And can they so tax them as to drive them out or altogether 
 prevent their introduction or their transit over their territory? 
 
 The case before us is a simple tax on sales of merchandise, im- 
 posed alike upon all sales made in Mobile, whether the sales be made 
 by a citizen of Alabama or of another State, and whether the goods 
 sold are the produce of that State or some other. There is no at- 
 tempt to discriminate injuriously against the products of other 
 States or the rights of their citizens, and the case is not, therefore, 
 an attempt to fetter commerce among the States, or to deprive the 
 citizens of other States of any privilege or immunity possessed by 
 citizens of Alabama. But a law having such operation would, in our 
 opinion, be an infringement of the provisions of the Constitution 
 which relate to those subjects, and therefore void. There is also, in 
 addition to the restraints which those provisions impose by their own 
 force on the States, the unquestioned power of Congress, under the 
 authority to regulate commerce among the States, to interpose, by 
 the exercise of this power, in such a manner as to prevent the States 
 from any oppressive interference with the free interchange of com- 
 modities by the citizens of one State with those of another. 
 
 Judgment, affirmed. 
 
 Mr. Justice NELSON, dissenting. 
 
 11
 
 162 LIMITATIONS OF THE TAXING POWER. 
 
 PEOPLE V. COMPAGNIE GENERALE TRANSATLANTIQUE. 
 
 Supreme Court of the United States. October, 1882 
 107 United States, 59. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 
 This was an action commenced by the People of the State of New 
 York, in the Court of Common Pleas for the City and County of 
 New York, to recover of the defendant the sum of one dollar for each 
 alien passenger brought into New York by its vessels, for whom a tax 
 had not been paid, with penalties and interest. The case was re- 
 moved into the Circuit Court of the United States, which, on de- 
 murrer to the complaint, rendered a judgment in favor of the de- 
 fendant. The plaintiff then brought this writ of error. 
 
 The tax in this case is demanded under sect. 1 of a statute of 
 New York, passed May 31, 1881, entitled "An act to raise money for 
 the execution of the inspection laws of the State of New York." The 
 section thus reads: 
 
 "Sect. 1. There shall be levied and collected a duty of one dollar 
 for each and every alien passenger who shall come by vessel from 
 a foreign port to the port of New York for whom a tax has not here- 
 tofore been paid, the same to be paid to the chamberlain of the City 
 of New York by the master, owner, agent, or consignee of every 
 such vessel within twenty-four hours after the entry thereof into the 
 port of New York." 
 
 It has been so repeatedly decided by this court that such a tax as 
 this is a regulation of commerce with foreign nations, confided by 
 the Constitution to the exclusive control of Congress, and this court 
 has so recently considered the whole subject in regard to similar stat- 
 utes of the States of New York, Louisiana, and California, that un- 
 les^s we are prepared to reverse our decisions and the principles on 
 which they are based, in the cases of Henderson v. Mayor of New 
 York and Chy Lung v. Freeman, 92 U. S. 259, 275, there is little to 
 say beyond affirming the judgment of the Circuit Court, which was 
 based on those decisions. 
 
 The argument mainly relied on in the present case is that the new 
 statute of New York, passed after her former statutes had been de- 
 clared void in Passenger Cases, 7 How. 283, and in the recent case of 
 Henderson v. Mayor of New York, is in aid of the inspection laws 
 of the State. This argument is supposed to derive support from an- 
 other statute passed three days earlier, entitled "An Act for the in-
 
 PEOPLE V. COMPAGXIE TRAXSATLAXT1QUE. 163 
 
 spection of alien emigrants and their effects by the commissioners of 
 emigration." 
 
 This act empowers and directs the commissioners of emigration 
 "to inspect the persons and effects of all persons arriving by vessel 
 at the port of Xew York from any foreign country, as far as may be 
 necessary, to ascertain who among them are habitual criminals, or 
 pauper lunatics, idiots, or imbeciles, or deaf, dumb, blind, infirm, or 
 orphan persons, without means or capacity to support themselves and 
 subject to become a public charge, and whether their persons or 
 effects are affected with any infectious or contagious disease, and 
 whether their effects contain any criminal implements or contriv- 
 
 ances. 
 
 We feel safe in saying that neither at the time of the formation 
 of the Constitution nor since has any inspection law included any- 
 thing but personal property as a subject of its operation. Nor has 
 it ever been held that the words "imports and exports" are used in 
 that instrument as applicable to free human beings by any com- 
 petent judicial authority. 
 
 We know of nothing which can be exported from one country or 
 imported into another that is not in some sense property, property 
 in regard to which some one is owner, and is either the importer 
 or the exporter. 
 
 This cannot apply to a free man. Of him it is never said he im- 
 ports himself, or his wife or his children. 
 
 The language of sect. 9, art. 1, of the Constitution, which is 
 relied on by counsel, does not establish a different construction: 
 "The migration or importation of such persons as any of the States 
 now existing shall think proper to admit, shall not be prohibited by 
 Congress prior to the year one thousand eight hundred and eight, 
 but a tax or duty may be imposed on such importation, not exceed- 
 ing ten dollars for each person." 
 
 There has never been any doubt that this clause had exclusive ref- 
 erence to persons of the African Race. The two words "migration" 
 and "importation" refer to the different conditions of this race as 
 regards freedom and slavery. When the free black man came here, 
 he migrated; when the slave came, he was imported. The latter 
 was property, and was imported by his owner as other property, and 
 a duty could be imposed on him as an import. We conclude that 
 free human beings are not imports or exports, within the meaning 
 of the Constitution. 
 
 In addition to what is said above, it is apparent that the object of
 
 164 LIMITATIONS OF THE TAXING POWER. 
 
 these New York enactments goes far beyond any correct view of 
 the purpose of an inspection law. The commissioners are "to in- 
 spect all persons arriving from any foreign country to ascertain 
 who among them are habitual criminals, or pauper lunatics, idiots,, 
 
 or imbeciles, or orphan persons, without means or 
 
 capacity to support themselves and subject to become a public 
 charge." 
 
 It may safely be said that these are matters incapable of being 
 satisfactorily ascertained by inspection. 
 
 What is an inspection? Something which can be accomplished by 
 looking at or weighing or measuring the thing to be inspected, or 
 applying to it at once some crucial test. When testimony or evi- 
 dence is to be taken and examined, it is not inspection in any sense 
 whatever. 
 
 Another section provides for the custody, the support, and the 
 treatment for disease of these persons, and the retransportation of 
 criminals. Are these inspection laws? Is the ascertainment of the 
 guilt of a crime to be made by inspection? 
 
 In fact, these statutes differ from those heretofore held void only 
 in calling them in their caption "inspection laws,'* and in providing 
 for payment of any surplus, after the support of paupers, criminals 
 and diseased persons, into the treasury of the United States, a sur- 
 plus which, in this enlarged view of what are the expenses of an 
 inspection law, it is safe to say will never exist. 
 
 A State cannot make a law designed to raise money to support 
 paupers, to detect or prevent crime, to guard against disease, and 
 to cure the sick, an inspection law, within the constitutional mean- 
 ing of that word, by calling it so in the title. 
 
 Since the decision of this case in the Circuit Court, Congress has 
 undertaken to do what this court has repeatedly said it alone had 
 the power to do. By the Act of August 3, 1882, c. 376, entitled "An 
 Act to regulate immigration," a duty of fifty cents is to be collected 
 for every passenger not a citizen of the United States who shall come 
 to any port within the United States by steam or sail vessel from a 
 foreign country, from the master of said vessel by the collector of 
 customs. The money so collected is to be paid into the treasury of 
 the United States, and to constitute a fund to be called the immi- 
 grant fund, for the care of immigrants arriving in the United 
 States, and the relief of such as are in distress. The Secretary of 
 the Treasury is charged with the duty of executing the provisions 
 of the act and with supervision over the business of immigration. 
 No more of the fund so raised is to be expended in any port than
 
 STATE TONNAGE TAX CASES. 165 
 
 is collected there. This legislation covers the same ground as the 
 New York statute, and they cannot co-exist. 
 
 Judgment affirmed. 
 
 8. Tonnage Taxes. 
 
 STATE TONNAGE TAX CASES. 
 
 Supreme Court of the United States. December, 1870. 
 12 Wallace, 204. 
 
 Mr. Justice CLIFFORD delivered the judgment of the court, giv- 
 ing an opinion in each of the cases. 
 
 I. IN THE FIRST CASE. 
 
 Assumpsit for money had and received is an appropriate remedy 
 to recover back moneys illegally exacted by a collector as taxes in 
 all jurisdictions where no other remedy is given, unless the tax was 
 voluntarily paid or some statutory conditions are annexed to the ex- 
 ercise of the right to sue, which were unknown at common law. 
 
 Where the party assessed voluntarily pays the tax he is without 
 remedy in such an action, but if the tax is illegal or was erroneously 
 assessed, and he paid it by compulsion of law or under protest, or 
 with notice that he intends to institute a suit to test the validity of 
 the tax, he may recover it back in such an action, unless the legisla- 
 tive authority, in the jurisdiction where the tax was levied, has pre- 
 scribed some other remedy or has annexed some other conditions to 
 the exercise of the right to institute such a suit. (Elliott v. Swar- 
 tout, 10 Peters, 150; Bend v. Hoyt, 13 id., 267.) 
 
 On the twenty-second of February, 1866, the legislature of Ala- 
 bama passed a revenue act, and therein, among other things, levied 
 a tax "on all steamboats, vessels, and other water-crafts plying in 
 the navigable waters of the State, at the rate of one dollar per ton 
 of the registered tonnage thereof," to be assessed and collected at the 
 port where such vessels are registered, if practicable, otherwise at 
 any other port or landing within the State where such vessel may 
 be." (Sess. Acts 1846, p. 7.) 
 
 Five steamboats were owned by the plaintiffs, who were citizens of 
 that State, doing business at Mobile under the firm name set forth 
 in the record. All of the steamboats were duly enrolled and licensed 
 in conformity to the act of Congress entitled "An act for enrolling 
 and licensing ships and vessels to be employed in the coasting trade
 
 166 LIMITATIONS OF THE TAXING POWER. 
 
 of the United States," and the record shows that at the time the 
 taxes, which are the subject of controversy, were imposed and col- 
 lected, all those steamboats were engaged in the navigation of the 
 Alabama, Bigbee, and Mobile Rivers, in the transportation of freight 
 and passengers between the port of Mobile and other towns and land- 
 ings on said rivers, within the limits of the State, the said rivers 
 being "waters navigable from the sea by vessels of ten or more tons 
 burden." (1 Stat. at Large, 77.) 
 
 Such steamboats are deemed ships and vessels of the United 
 States, and as such are entitled to the privileges secured to such 
 ships and vessels by the act of Congress providing for enrolling and 
 licensing ships and vessels to be employed in that trade. (Ib. 305-.) 
 
 Demand of the taxes having been made by the collector, the plain- 
 tiffs protested that the same were illegal, but they ultimately paid 
 the same to prevent the collector from seizing the steamboats and 
 selling the same in case they refused to pay the amount. They paid 
 the sum of two thousand eight hundred and forty-eight dollars and 
 twenty-five cents as the amount of the taxes, fees, and expenses de- 
 manded by the defendant, and brought an action of assumpsit 
 against the collector in the Circuit Court of the State for Mobile 
 County to recover back the amount, upon the ground that the sum 
 was illegally exacted. Judgment was rendered in that court for the 
 plaintiffs, the court deciding that the taxes were illegal, as having 
 been levied in violation of the Federal Constitution. Appeal was 
 taken by the defendant to the Supreme Court of the State, where the 
 parties were again heard, but the Supreme Court of the State, differ- 
 ing in opinion from the Circuit Court where the suit was com- 
 menced, rendered judgment for the defendant, whereupon the plain- 
 tiffs sued out a writ of error and removed the record into this court 
 for re-examination. 
 
 I. Two principal objections were made to the taxes by the 
 plaintiffs, as appears by the agreed statement, which is made a part 
 of the record. (1) That the taxes as levied and collected were in 
 direct contravention of the prohibition of the Constitution, that "no 
 State shall, without the consent of Congress, levy any duty of ton- 
 nage," and the proposition of the plaintiffs was and still is that the 
 act of the legislature of the State directs in express terms that such 
 taxes shall be levied on all steamboats, vessels, and other water-crafts 
 plying in the navigable waters of the State. (2) That the State law 
 by levying the taxes violates the compact between the State and the 
 United States, that "all navigable waters within the said State shall
 
 STATE TONNAGE TAX CASES. 161 
 
 forever remain public highways, free to the citizens of the said State 
 and of the United States, without any tax, duty, impost, or toll 
 therefor imposed by the said State.'' (3 Stat. at Large, 492.) 
 
 1. Congress has prescribed the rules of admeasurement and com- 
 putation for estimating the tonnage of American ships and vessels. 
 (13 Id. 70; Ib. 444.) 
 
 Viewed in the light of those enactments, the word tonnage, as ap- 
 plied to American ships and vessels, must be held to mean their 
 entire internal cubical capacity, or contents of the ship or vessel ex- 
 pressed in tons of one one hundred cubical feet each, as estimated and 
 ascertained by those rules of admeasurement and of computation. 
 (Alexander v. Railroad, 3 Strohbart, 598.) 
 
 Taxes levied by a State upon ships and vessels. owned by the citi- 
 zens of the State as property, based on a valuation of the same as 
 property, are not within the prohibition of the Constitution, but it 
 is equally clear and undeniable that taxes levied by a State upon 
 ships and vessels as instruments of commerce and navigation are 
 within that clause of the instrument which prohibits the States from 
 levying any duty of tonnage, without the consent of Congress; and 
 it makes no difference whether the ships or vessels taxed belong to 
 the citizens of the State which levies the tax or the citizens of an- 
 other State, as the prohibition is general, withdrawing altogether 
 from the States the power to lay any duty of tonnage under any 
 circumstances, without the consent of Congress. (Gibbons v. Ogden, 
 9 Wheaton, 202; Sinnot v. Davenport, 22 Howard, 238; Foster v. 
 Davenport, Ib. 245; Perry v. Torrence, 8 Ohio, 524.) 
 
 Annual taxes upon property in ships and vessels are continually 
 laid, and their validity was never doubted or called in question, but 
 if the States, without the consent of Congress, tax shipe or vessel^ 
 as instruments of commerce, by a tonnage duty, or indirectly by im- 
 posing the tax upon the master or crew, they assume a jurisdiction 
 which they do not possess, as every such act falls directly within the 
 prohibition of the Constitution. (Passenger Cases, 7 Howard, 447, 
 481.) 
 
 Tonnage duties are as much taxes as duties on imports or ex- 
 ports, and the prohibition of the Constitution extends as fully to 
 such duties if levied by the States as to duties on imports or ex- 
 ports, and for reasons quite as strong as those which induced the 
 framers of the Constitution to withdraw imports and exports from 
 State taxation. Measures, however, scarcely distinguishable from
 
 168 LIMITATIONS OF THE TAXING POWER. 
 
 each other may flow from distinct grants of power, as for example, 
 Congress does not possess the power to regulate the purely internal 
 commerce of the States, but Congress may enroll and license ships 
 and vessels to sail from one port to another in the same State, and 
 it is clear that such ships and vessels are deemed ships and vessels of 
 the United States, and that as such they are entitled to the privileges 
 of ships and vessels employed in the coasting trade, (1 Stat. at 
 Large, 287; Ib. 305; 3 Kent, llth ed. 203.) 
 
 Ships and vessels enrolled and licensed under that act are author- 
 ized to carry on the coasting trade, as the act contains a positive en- 
 actment that the ships and vessels it describes, and no others, shall 
 be deemed ships or vessels of the United States entitled to the privi- 
 leges of ships and vessels employed in the trade therein described. 
 (Gibbons v. Ogden 9 Wheaton, 212.) 
 
 Steamboats, as well as sailing ships and vessels, are required to be 
 enrolled and licensed for the coasting trade, and the record shows 
 that all the steamboats taxed in this case had conformed to all the 
 regulations of Congress in that regard, that they were duly enrolled 
 and licensed for the coasting trade and were engaged in the trans- 
 portation of passengers and freight within the limits of the State, 
 upon waters navigable from the sea by vessels of ten or more tons 
 burden. 
 
 Tonnage duties, to a greater or less extent, have been imposed by 
 Congress ever since the Federal government was organized under the 
 Constitution to the present time. They have usually been exacted 
 when the ship or vessel entered the port, and have been collected in 
 a manner not substantially different from that prescribed in the 
 act of the State legislature under consideration. Undisputed author- 
 ity exists in Congress to impose such duties, and it is not pretended 
 that any consent has ever been given by Congress to the State to 
 exercise any such power. 
 
 If the tax levied is a duty of tonnage, it is conceded that it i-< 
 illegal, and it is difficult to see how the concession could be avoided, 
 as the prohibition is express, but the attempt is made to show that 
 the legislature in enacting the law imposing the tax, merely referred 
 to the registered tonnage of the steamboats "as a way or mode to 
 determine and ascertain the tax to be assessed on the steamboats, 
 and to furnish a rule or rate to govern the assessors in the perform- 
 ance of their duties." 
 
 Suppose that could be admitted, it would not have much tendency 
 to strengthen the argument for the defendant, as the suggestion con-
 
 STATE TONNAGE TAX CASES. Kii) 
 
 cedes what is obvious from the schedule, that the taxes are levied 
 without regard to the value of the steamboats. But the proposition 
 involved in the suggestion cannot be admitted, as by the very terms 
 of the act, the tax is levied on the steamboats wholly irrespective of 
 the value of the vessels as property, and solely and exclusively on 
 the basis of their cubical contents as ascertained by the rules of ad- 
 measurement and computation prescribed by the act of Congress. 
 
 Legislative enactments, where the language is unambiguous, cannot 
 l>e changed by construction, nor can the language be divested of its 
 plain and obvious meaning. Taxes levied under an enactment which 
 directs that a tax shall be imposed on steamboats at the rate of one 
 dollar per ton of the registered tonnage thereof, and that the same 
 shall be assessed and collected at the port where such steamboats are 
 registered, cannot, in the judgment of this court, be held to be a 
 tax on the steamboat as property. On the contrary the tax is just 
 what the language imports, a duty of tonnage, which is made even 
 plainer when it comes to be considered that the steamboats are not 
 to be taxed at all unless they are "plying in the navigable waters of 
 the State," showing to a demonstration that it is as instruments \)f 
 commerce and not as property that they are required to contribute 
 to the revenues of the State. 
 
 Such provision is much more clearly within the prohibition in ques- 
 tion than the one involved in a recent case decided by this court, in 
 which it was held that a statute of a State enacting that the ward- 
 ens of a port were entitled to demand and receive, in addition to 
 other fees, the sum of five dollars for every vessel arriving at the 
 port, whether called on to perform any service or not, was both a 
 regulation of commerce and a duty of tonnage, and that as such it 
 was unconstitutional and void. (Steamship Co. v. Port Wardens, 6 
 Wallace, 34.) 
 
 Speaking of the same prohibition, the Chief Justice said in that 
 case that those words in their most obvious and general sense de- 
 scribe a duty proportioned to the tonnage of the vessel a certain 
 rate on each ton which is exactly what is directed by the provision 
 in the tax act before the court, but he added that it seems plain, if 
 the Constitution be taken in that restricted sense, it would not fully 
 accomplish the intent of the framers, as the prohibition upon the 
 States against levying duties on imports or exports would be in- 
 effectual if it did not also extend to duties on the ships which serve 
 as the vehicles of conveyance, which was doubtless intended by the- 
 prohibition of any duty of tonnage. "It was not only a pro rata tax 
 which was prohibited, but any duty on the ship, whether a fixed
 
 170 LIMITATIONS OF THE TAXING POWER. 
 
 sum upon its whole tonnage, or a sum to be ascertained by com- 
 paring the amount of tonnage with the rate of duty." 
 
 Assume the rule to be as there laid down and all must agree that 
 "the levy of the tax in question is expressly prohibited, as the sched- 
 ule shows that it is exactly proportioned to the registered tonnage of 
 the steamboats plying in the navigable waters of the State." 
 
 Strong as the language of the Chief Justice is in that case, it is 
 no stronger than the language employed by the Supreme Court of 
 the State to which this writ of error was addressed in the case of 
 Sheffield v. Parsons, (3 Stewart & Porter, 304), in which the court 
 in effect says that no tax, custom, or toll, can be levied "on the ton- 
 nage of any vessel, without the consent of Congress, for any pur- 
 pose." Precisely the same rule was applied by that court to vessels 
 duly enrolled and licensed for the coasting trade, and which were 
 exclusively engaged in the towage and lighterage business in the bay 
 and harbor of Mobile, carrying passengers and freight between the 
 city and vessels at the anchorage below the bar. (Lott v. Morgan, 
 41 Alabama, 250.) 
 
 Some stress was laid in that case upon the circumstance that the 
 vessels taxed were engaged in transporting cargoes to and from ves- 
 sels engaged in foreign commerce, bound to that port, but it is quite 
 clear that that circumstance is entitled to no weight, as the prohibi- 
 tion extends to all ships and vessels entitled to the privileges of ships 
 and vessels employed in the coasting trade, whether employed in 
 commercial intercourse between ports in different States or between 
 different ports in the same State. (People v. Saratoga & Rensselaer 
 Railroad Company, 15 Wendell, 131; Steamboat Company v. Liv- 
 ingston, 3 Cowen, 743.) 
 
 Formerly harbor-masters, at the port of Charleston, by an ordi- 
 nance of that city, might exact one cent per ton, once in every three 
 months, of every steam packet or other vessel from certain adjoining 
 States trading steadily there and performing regular successive voy- 
 ages to that port, but when the question came to be presented to 
 the Court of Errors of that State, the judges unanimously held that 
 the exaction was a duty on tonnage, and that, as such, the provision 
 was unconstitutional and void. (Alexander v. Railroad, 3 Strohbart, 
 598.) 
 
 Taxes in aid of the inspection laws of a State, under special cir- 
 cumstances, have been upheld as necessary to promote the interests 
 of commerce and the security of navigation. (Cooley v. Port Ward- 
 ens, 12 How. 314.) 
 
 Laws of that character are upheld as contemplating benefits and
 
 STATE TOXXA(JE TAX- CASES. 171 
 
 advantages to commerce and navigation, and as altogether distinct 
 from imposts and duties on imports and exports and duties of ton- 
 nage. Usage, it is said, has sanctioned such laws where Congress 
 has not legislated, but it is clear that such laws bear no relation to 
 the act in question, as the act under consideration is emphatically 
 an act to raise revenue to replenish the treasury of the State and 
 for no other purpose, and does not contemplate any beneficial ser- 
 vice for the steamboats or other vessels subjected to taxation. 
 
 Beyond question the act is an act to raise revenue without any 
 corresponding or equivalent benefit or advantage to the vessels taxed 
 or to the shipowners, and consequently it cannot be upheld by virtue 
 of the rules applied to the construction of laws regulating pilot dues 
 and port charges. (State v. Charleston, 4 Rich. S. C. 286; Benedict 
 v. Vanderbilt, I Robt. N. Y. 200.) 
 
 Attempt was made in the case of Alexander v. Railroad, to show 
 that the form of levying the tax was simply a mode of assessing ves- 
 sels as property, but the argument did not prevail, nor can it in this 
 case, as the amount of the tax is measured by the tonnage of the 
 steamboats and not by their value as property. 
 
 Reference is made to the case of the Towboat Company v. Bor- 
 delon, (7 Louisiana An. 195), as asserting the opposite rule, but the 
 court is of a different opinion, as the tax in that case was levied, 
 not upon the boat but upon the capital of the company owning the 
 boat, and the court in delivering their opinion say the capital of the 
 company is property, and the constitution of the State requires an 
 equal and uniform tax to be imposed upon it with the other prop- 
 erty of the State for the support of government. 
 
 For these reasons the court is of opinion that the State law levy- 
 ing the taxes in this case is unconstitutional and void, that the judg- 
 ment of the State court is erroneous and that it must be reversed, 
 and having come to that conclusion the court does not find it neces- 
 sary to determine the other question. 
 
 JUDGMENT REVERSED with costs, and the cause remanded for fur- 
 ther proceedings in conformity to the opinion of the court. 
 
 II. IN THE SECOND CASE. 
 
 Much discussion of the questions involved in this record will not 
 be required, as they are substantially the same as those presented in 
 the preceding case, which have already been fully considered and 
 definitely decided. 
 
 Bills of the taxes, it is alleged were rendered to the complainants,
 
 172 LIMITATIONS OF THE TAXING POWER. 
 
 but it is not necessary to enter into those details, except to say that 
 the taxes were levied in the same form as in the preceding case, and 
 the complainants allege that the respondent claims that he is author- 
 ized, in case they refuse to pay the taxes, to seize the respective 
 steamboats, and that he may proceed, after twenty days' notice, to 
 sell the same, or as much thereof as will pay the taxes, expenses and 
 costs. They, the complainants, deny the legality of the taxes, and 
 allege that the respondent, as such collector, threatens to seize the 
 said steamboats and to proceed to sell the same to pay the taxes, ex- 
 penses, and costs, which, they insist, would be contrary to equity. 
 Being without any remedy at law, as they allege, they ask the inter- 
 position of a court of equity, and allege that the taxes are illegal. 
 
 Different remedies are accorded to a complaining party in differ- 
 ent jurisdictions for grievances such as the one set forth in the bill 
 of complaint before the court. Usually preventive remedies are dis- 
 countenanced as embarrassing to the just operations of the govern- 
 ment, and the party taxed is required to pay the tax and seek re- 
 dress in an action of assumpsit against the collector for money had 
 and received. Decided cases may also be referred to where it is held 
 that trespass will lie against the assessor, if it appear that the whole 
 tax was levied without authority, as in that state of the case it is 
 held that the assessor had no jurisdiction of the subject-matter. Pre- 
 ventive remedies, however, are accorded in some of the States, and in 
 cases brought here by writ of error under the twenty-fifth section of 
 the Judiciary Act, if no objection was taken in the court below to 
 the form of the remedy employed, and none is taken in this court, 
 it may safely be assumed that the proceeding adopted was regarded 
 in the court below as an appropriate remedy for the alleged griev- 
 ance. Doubts upon that subject cannot be entertained in this case, 
 as the record shows that both courts heard and determined the case 
 upon the merits, and all parties conceded throughout the litigation 
 that the complainants were entitled to the relief prayed for in the 
 bill of complaint, if the taxes were illegal, and the law levying the 
 same was unconstitutional and void. 
 
 State authority to tax ships and vessels, it is supposed by the re- 
 spondent, extends to all cases where the ship or vessel is not em- 
 ployed in foreign commerce or in commerce between ports or places 
 in different States. He concedes that the States cannot levy a duty 
 of tonnage on ships or vessels if the ship or vessel is employed in 
 foreign commerce or in commerce "among the States," but he denies
 
 FAIRBANK V. UNITED STATES. 173 
 
 that the prohibition extends to ships or vessels employed in com- 
 merce between ports and places in the same State, and that is the 
 leading error in the opinion of the Supreme Court of the State. 
 Founded upon that mistake the proposition is that all taxes are 
 taxes upon property, although levied upon ships and vessels duly en- 
 rolled and licensed, if the ship or vessel is not employed in foreign 
 commerce or in commerce among the States. 
 
 Ships or vessels of ten or more tons burden, duly enrolled and 
 licensed, if engaged in commerce on waters which are navigable by 
 such vessels from the sea, are ships and vessels of the United States 
 entitled to the privileges secured to such vessels by the act for en- 
 rolling or licensing ships or vessels to be employed in the coasting 
 trade. 
 
 Such a rule as that assumed by the respondent would incorporate 
 into the Constitution an exception which it does not contain. Had 
 the prohibition in terms applied only to ships and vessels employed 
 in foreign commerce or in commerce among the States, his construc- 
 tion would be right, but courts of justice cannot add any new pro- 
 vision to the fundamental law, and, if not, it seems clear to a dem- 
 onstration that the construction assumed by the respondent is 
 erroneous. 
 
 DECREE REVERSED and the cause remanded for further proceedings 
 in conformity to the opinion of this court. 
 
 4. Taxes on Exports. 
 
 FAIRBANK V. UNITED STATES. 
 
 Supreme Court of the United States. April, 1901. 
 181 United States, 283. 
 
 On March 7, 1900, plaintiff in error was convicted in the Dis- 
 trict Court of the United States for the District of Minnesota on the 
 charge of issuing as agent of the Northern Pacific Railway Company 
 an export bill of lading upon certain wheat exported from Minne- 
 sota to Liverpool, England, without affixing thereto an internal rev- 
 enue stamp, as required by the act of June 13, 1898, c. 448, 30 
 Stat. 448. Upon that conviction he was sentenced to pay a fine of 
 $25. His contention on the trial was that that act, so far as it im- 
 poses a stamp tax on foreign bills of lading, is in conflict with art. 
 I, section 9, of the Constitution of the United States, which reads:
 
 174 LIMITATIONS OF THE TAXING POWER. 
 
 "No tax or duty shall be laid on articles exported from any State." 
 This contention was not sustained by the trial court, and this writ 
 of error was sued out to review the judgment solely upon the fore- 
 going constitutional question. 
 
 Mr. Justice BREWER, after stating the case, delivered the opinion 
 of the court. 
 
 I f powers granted are to be taken as broadly granted and as carry- 
 ing with them authority to pass those acts which may be reasonably 
 necessary to carry them into full execution; in other words, if the 
 Constitution in its grant of powers is to be so construed that Con- 
 gress shall be able to carry into full effect the powers granted, it is 
 equally imperative that where prohibition or limitation is placed 
 upon the power of Congress, that prohibition or limitation should be 
 equally enforced in its spirit and to its entirety 
 
 The constitutional provision is "no tax or duty shall be laid on 
 articles exported from any State." The statute challenged imposes 
 on "bills of lading for any goods, merchandise or effects, to be ex- 
 ported from any port or place, ten cents." The contention on the 
 part of the Government is that no tax or duty is placed upon the 
 article exported; that so far as the question is in respect to what 
 may be exported and how it should be exported, the statute, follow- 
 ing the Constitution, imposes no restriction; that the full scope of 
 the legislation is to impose a stamp duty on a document not neces- 
 sarily though ordinarily used in connection with the exportation of 
 goods; that it is a mere stamp imposition on an instrument, and, 
 similar to many such taxes as are imposed by Congress, by virtue 
 of its general power of taxation, not upon this alone, but upon a 
 great variety of instruments used in the ordinary transactions of 
 business. On the other hand, it is insisted that though Congress by 
 virtue of its general taxing power may impose stamp duties on the 
 great bulk of instruments used in commerce, yet it cannot in the ex- 
 ercise of such power interfere with that freedom from governmental 
 burden in the matter of exports which it was the intention of the 
 Constitution to protect and preserve. It must be noticed that by 
 this act of 1898 while a variety of stamp taxes are imposed, a dis- 
 crimination is made between the tax imposed upon an ordinary in- 
 ternal bill of lading and that upon one having respect solely to mat- 
 ters of export. An ordinary bill of lading is charged one cent; an 
 export bill of lading ten cents. So it is insisted that there was not
 
 FAIRBANK V. UNITED STATES. 175 
 
 simply an effort to place a stamp duty on all documents of a similar 
 nature but by virtue of the difference an attempt to burden exports 
 with a discriminating and excessive tax. 
 
 The requirement of the Constitution is that exports should be free 
 from any governmental burden. The language is "no tax or duty." 
 Whether such provision is or is not wise is a question of policy with 
 which the courts have nothing to do. We know historically that it 
 is one of the compromises which entered into and made possible the 
 adoption of the Constitution. It is a restriction on the power of 
 Congress; and as in accordance with the rules heretofore noticed the 
 grants of powers should be so construed as to give full efficacy to 
 those powers and enable Congress to use such means as it deems 
 necessary to carry them into effect, so in like manner a restriction 
 should be enforced in accordance with its letter and spirit, and no 
 legislation can be tolerated which, although it may not conflict with 
 the letter, destroys the spirit and purpose of the restriction imposed. 
 If, for instance, Congress may place a stamp duty of ten cents on 
 bills of lading on goods to be exported it is because it has power 
 to do so, and if it has power to impose this amount of stamp duty 
 it has like power to impose any sum in the way of stamp duty which 
 it sees fit. And it needs but a moment's reflection to show that 
 thereby it can as effectually place a burden upon exports as though 
 it placed a tax directly upon the articles exported. It can, for the 
 purposes of revenue, receive just as much as though it placed a duty 
 directly upon the articles, and it can just as fully restrict the free 
 exportation which was one of the purposes of the Constitution. 
 
 The power to tax is the power to destroy. And that power can 
 be exercised not only by a tax directly on articles exported, but also 
 and equally by a stamp duty on bills of lading evidencing the ex- 
 port The question of power is not to be determined 
 
 by the amount of the burden attempted to be cast. The constitu- 
 tional language is "no tax or duty." A ten cent tax or duty is in 
 conflict with that provision as certainly as an hundred dollar tax or 
 duty. Constitutional mandates are imperative. The question is 
 never one of amount but one of power. The applicable maxim is 
 "obsta principles," not "de minimis non curatur lex." 
 
 If all exports must be free from national tax or duty, such free- 
 dom requires not simply an omission of a tax upon the articles ex- 
 ported, but also a freedom from any tax which directly burdens the 
 exportation, and, as we have shown, a stamp tax on a bill of lading, 
 which evidences the export, is just as clearly a burden on the ex-
 
 176 LIMITATIONS OF THE TAXING POWER. 
 
 portation as a direct tax on the article mentioned in the bill of 
 lading as the subject of the export. 
 
 In Nicol v. Ames, 173 U. S. 509, we had occasion to consider this 
 very act in reference to another stamp duty We sus- 
 tained that tax as a tax upon the privilege or facilities obtained by 
 dealings on exchange, saying (p. 521) : 
 
 "A tax upon the privilege of selling property at the exchange and 
 of thus using the facilities there offered in accomplishing the sale dif- 
 fers radically from a tax upon every sale made in any place. The 
 latter tax is really and practically upon property." 
 
 If it be true that a stamp tax required upon every instrument evi- 
 dencing a sale is really and practically a tax upon the property sold, 
 it is equally clear that a stamp duty upon foreign bills of lading is 
 a tax upon the articles exported. 
 
 These considerations find ample support in prior adjudications of 
 this court. Thus, in Almy v. California, 24 How. 169, 174; it ap- 
 peared that the State of California had imposed a stamp tax on bills 
 of lading for gold or silver shipped to any place outside of the State, 
 and the contention was that such stamp tax was not a tax on 
 the goods themselves, but the court said : 
 
 "But a tax or duty on a bill of lading, although differing in form 
 from a duty on the article shipped, is in substance the same thing; 
 for a bill of lading or some written instrument of the same import 
 is necessarily always associated with every shipment of articles of 
 commerce from the ports of one country to those of another. The 
 necessities of commerce require it. And it is hardly less necessary to 
 the existence of such commerce than casks to cover tobacco or bag- 
 ging to cover cotton when such articles are exported to a foreign coun- 
 try ; for no one would put his property in the hands of a ship master 
 without taking written evidence of its receipt on board the vessel and 
 the purposes for which it was placed in his hands. The merchant 
 could not send an agent with every vessel, to inform the consignee of 
 the cargo of what articles he had shipped, and prove the contract of 
 the master if he failed to deliver them in safety. A bill of lading, 
 therefore, or some equivalent instrument of writing, is invariably as- 
 sociated with every cargo of merchandise exported to a foreign coun- 
 try, and consequently a duty upon that is a duty on the article ex- 
 ported." 
 
 On the other hand, Pace v. Burgess, Collector, 92 TJ. S. 372, is 
 cited as an authority against these conclusions; but an examination
 
 FAIRBANK V. UNITED STATES. 177 
 
 of the case shows that this is a mistake. The act of 1868, 15 Stat. 
 123, imposed certain taxes on the manufacture of tobacco for con- 
 sumption or use, required as evidence of the payment of such taxes 
 the affixing of revenue stamps to the packages, and forbade the re- 
 moval of any tobacco from the factory without payment of the taxes 
 and affixing of the stamps. It further provided that tobacco might 
 be manufactured for export and exported without payment of any 
 tax. . . . "The proper fees accruing in the due administration 
 of the laws and regulations necessary to be observed to protect the 
 government from imposition and fraud likely to be committed under 
 the pretence of exportation are in no sense a duty on exportation. 
 They are simply the compensation given for services properly ren- 
 dered. The rule by which they are estimated may be an arbitrary 
 one; but an arbitrary rule may be more convenient and less onerous 
 than any other which can be adopted. The point to guard against 
 is, the imposition of a duty under the pretext of fixing a fee. In 
 the case under consideration, having due regard to that latitude of 
 discretion which the legislature is entitled to exercise in the selection 
 of the means for attaining a constitutional object, we cannot say that 
 the charge imposed is excessive, or that it amounts to an infringe- 
 ment of the constitutional provision referred to. We cannot say that 
 it is a tax or duty instead of what it purports to be, a fee or charge, 
 for the employment of that instrumentality which the circumstances 
 of the case render necessary for the protection of the government. 
 
 "One cause of difficulty in the case arises from the use of stamps 
 as one of the means of segregating and identifying the property in- 
 tended to be exported. It is the form in which many taxes and du- 
 ties are imposed and liquidated; stamps being seldom used except 
 for the purpose of levying a duty or tax. But we must regard things 
 rather than names. A stamp may be used, and, in the case before us 
 we think it is used for quite a different purpose than that of impos- 
 ing a tax or duty; indeed, it is used for the very contrary purpose 
 that of securing exemption from a tax or duty. The stamps required 
 by recent laws to be affixed to all agreements, documents and papers, 
 and to different articles of manufacture, were really and in truth 
 taxes and duties, and were intended as such. The stamp required to 
 be placed on gold dust exported from California by a law of that 
 State was clearly an export tax, as this court decided in the case of 
 Almy v. The State of California, 24 How. 169. In all such cases no 
 one could entertain a reasonable doubt on the subject." 
 
 Another matter pressed upon our attention, which deserves and has 
 
 12
 
 178 LIMITATIONS OF THE TAXING POWER 
 
 received careful consideration, is the practical construction of this 
 constitutional provision by legislative action. 
 
 From this resume of our decisions it clearly appears that practical 
 construction is relied upon only in cases of doubt. We have referred 
 to it when the construction seemed to be demonstrable, but then 
 only in response to doubts suggested by counsel. Where there was 
 obviously a matter of doubt, we have yielded assent to the construc- 
 tion placed by those having actual charge of the execution of the stat- 
 ute, but where there was no doubt we have steadfastly declined to 
 recognize any force in practical construction. Thus, before any ap- 
 peal can be made to practical construction, it must appear that the 
 true meaning is doubtful. 
 
 We have no disposition to belittle the significance of this matter. 
 It is always entitled to careful consideration, and in doubtful cases will, 
 as we have shown, often turn the scale; but when the meaning and 
 scope of a constitutional provision are clear, it cannot be overthrown 
 by legislative action, although several times repeated and never be- 
 fore challenged. It will be perceived that these stamp duties have 
 been in force during only three periods: First, from 1797 to 1802; 
 second, from 1862 to 1872; and, third, commencing with the recent 
 statute of 1898. It must be borne in mind also, in respect to this 
 matter that during the first period exports were limited, and the 
 amount of the stamp duty was small, and that during the second 
 period we were passing through the stress of a great civil war or 
 endeavoring to carry its enormous debt; so that it is not strange that 
 the legislative action in this respect passed unchallenged. Indeed, 
 it is only of late years when the burdens of taxation are increasing 
 by reason of the great expenses of government, that the objects and 
 modes of taxation have become a matter of special scrutiny. But the 
 delay in presenting these questions is no excuse for not giving them 
 full consideration and determining them in accordance with the true 
 meaning of the Constitution. 
 
 Without enlarging further on these matters, we are of opinion that 
 a stamp tax on a foreign bill of lading is in substance and effect 
 equivalent to a tax on the articles included in that bill of lading, 
 and, therefore, a tax or duty on exports, and in conflict with the con- 
 stitutional prohibition. The judgment of the District Court will be 
 reversed and the case remanded with instruction to grant a new trial. 
 
 Mr. Justice HARLAN (with whom concurred Mr. Justice GRAY, 
 Mr. Justice WHITE and Mr. Justice McKENNA,) dissenting.
 
 SAN MATED CO. V. S. P. E. R. CO. 179 
 
 III. DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS. 
 
 1. Hearing Necessary. 
 COUNTY OF SAN MATEO V. SOUTHERN PACIFIC R. R. CO. 
 
 United States Circuit Court, District of California. September 25, 
 1882. 13 Federal Reporter 722. 
 
 FIELD, Justice. This action is brought to recover of the Southern 
 Pacific Railroad Company, a corporation formed under the laws of 
 California, certain state and county taxes levied upon its property for 
 the fiscal year of 1881 and 1882, alleged to be due to the plaintiff, 
 with 5 per cent added for their non-payment, and interest. It was 
 commenced in one of the superior courts of the state, and, on appli- 
 cation of the defendant, was removed to this court. 
 
 The railroad company contends that the taxes are invalid and void 
 on two grounds : 
 
 (2) Because the assessment was made in pursuance of provisions 
 of the state constitution, which gave no notice to the company, and 
 afforded it no opportunity to be heard respecting the value of the 
 property, or for the correction of any errors of the board, thus depriv- 
 ing it of its property without due process of law guaranteed by [the 
 fourteenth amendment of the United States Constitution.] 
 
 The Political Code provides that the assessment shall be made by 
 the state board on or before the first Monday in May of each year; 
 that the president, secretary cashier, or managing agent, or such offi- 
 cer of the corporation as the board may designate, shall furnish to 
 the board, on or before the first Monday of April of the year, a state- 
 ment, signed and sworn to by him, showing in detail the whole num- 
 ber of miles of railway owned, operated, or leased in the state by the 
 corporation, and the value thereof per mile, and all its property of 
 every kind located in the state, the number and value of its engines, 
 passenger, mail, express, baggage, freight, and other cars, or prop- 
 erty used in operating or repairing the railway in the state, and on 
 railways which are parts of lines extending beyond its limits, the 
 amount of the rolling stock in use during the year, the annual gross 
 earnings of the entire railway, and the proportionate annual gross 
 earnings of the same in the state, and such other facts as the board
 
 180 LIMITATIONS OF THE TAXING POWER. 
 
 may in writing require; and that if the officer or officers designated 
 fail to make and furnish such statement, the board shall proceed to 
 assess the property; and the valuation fixed shall be final and con- 
 clusive 
 
 We have no doubt that further legislation might have been adopted 
 providing for notice to the company, and a system of procedure by 
 which it might have been heard respecting the assessment. We do 
 not understand that the supreme court of the state intended by the 
 decision cited (People v. Sup'rs of Sacramento County, 8 Pac. Law. 
 J. 103) to hold that the tenth section of the thirteenth article is self 
 executing, except to the extent that it vests complete power in the 
 state board to make the assessment of the property ; nor that legisla- 
 tion may not be had providing for the mode in which the powers of 
 the board shall be exercised. Indeed, the concluding section of the 
 article authorizes any legislation necessary to give effect to its pro- 
 visions. Unfortunately, no such legislation has been had. The at- 
 tempted legislation failed, because it did not receive in the legislature 
 the constitutional majority, as is clearly shown by the circuit judge 
 in his opinion. It is unnecessary to go over the ground he has com- 
 pletely covered. 
 
 The presentation to the state board by the corporation of a state- 
 ment of its property and of its value, which it is required to furnish, 
 is not the equivalent to a notice of the assessment made and of an 
 opportunity to be heard thereon. It is a preliminary proceeding, and 
 until the assessment the corporation cannot know whether it will have 
 good cause of complaint. No hearing upon the statement presented 
 is allowed, and when the assessment is made the matter is closed; no 
 opportunity to correct any errors committed is provided. The pres- 
 entation of the statement can no more supersede the necessity of al- 
 lowing a subsequent hearing of the owners, than the filing of a com- 
 plaint in court can dispense with the right of the suitor and his con- 
 testant to be there heard. 
 
 There being, then, no provisions of law giving to the company no- 
 tice of the action of the state board, and an opportunity to be heard 
 respecting it, is the assessment valid? Would the taking of the com- 
 pany's property in the enforcement of the tax levied according to the 
 assessment be depriving it of its property without due process of law ? 
 It seems to us that there can be but one answer to these questions. 
 There is something repugnant to all notions of justice in the doctrine 
 that any body of men can be clothed with the power of finally deter- 
 mining the value of another's property, according to which it may be 
 taxed, without affording him an opportunity of being heard respect-
 
 SAN MATEO CO. V. S. P. R. R. CO. 181 
 
 ing the correctness of their action. And tho injustice is strikingly 
 apparent when the property consists of the great number of particu- 
 lars which go to make up the taxable estate of a railroad company, 
 requiring for any just estimate of their value accurate knowledge 
 upon a multitude of subjects, not usually possessed without special 
 study. We cannot assent to any such doctrine. It conflicts with the 
 great principle which lies at the foundation of all just government, 
 that no one shall be deprived of his life, his liberty, or his property 
 without an opportunity of being heard against the proceeding. The 
 principle is as old as Magna Charta, and is embodied in all the state 
 constitutions, and in the fourteenth amendment of the federal Con- 
 stitution. The provision in this amendment is in the form of an in- 
 terdict upon the states "Nor shall any state deprive any person of 
 life, liberty, or property without due process of law." And by due 
 process is meant one which, following the forms of law, is appro- 
 priate to the case, and just to the parties to be affected. It must be 
 pursued in the ordinary mode prescribed by the law. It must be 
 adapted to the ends to be attained ; and it must give to the party to 
 be affected an opportunity of being heard respecting the justice of 
 the judgment sought. Without ,iiese conditions entering into the 
 proceeding, it would be anything but due process. If it touched life 
 or liberty, it would be wanton punishment, or rather wanton cruelty; 
 if it touched property, it would be arbitrary exaction. It is signifi- 
 cant that the guaranty against the deprivation of property without 
 due process of law is contained in the clause which guarantees 
 against a like deprivation of life and liberty; and it means that there 
 shall be no proceeding against either without the observance of all 
 the securities applicable to the case recognized by the general law, by 
 those principles which are established in all constitutional govern- 
 ments for the protection of private rights. Notice is absolutely essen- 
 tial to the validity of the proceeding in any case; it may be given by 
 personal citation, and in some cases it may be given by statute; and 
 given it must be in some form. If life and liberty are involved, there 
 must be a regular course of judicial proceedings ; so, also, where title 
 or possession of property is in contention. But in the taking of prop- 
 erty by taxation the proceeding is more summary and stringent. The 
 necessities of revenue for the support of government will not admit 
 of the delays attendant upon judicial proceedings in the courts of 
 justice. The statute fixes the rate of taxation upon the value of the 
 property, and appoints officers to estimate and appraise the value. 
 Due process of law in the proceeding is deemed to be pursued, when 
 after assessment is made by the assessing officers upon such informa-
 
 182 LIMITATIONS OF THE TAXING POWER. 
 
 tion as they may obtain, the owner is allowed a reasonable oppor- 
 tunity, at a time and place to be designated, to be heard respecting 
 the correctness of the assessment, and to show any errors in the val- 
 uation committed by the officers. Notice to him will be deemed suffi- 
 cient, if the time and place be designated by statute. But whatever 
 the character of the proceeding, whether judicial or administrative, 
 summary or protracted, and whether it takes property directly or cre- 
 ates a charge or liability which may be the basis of taking it, the law 
 directing the proceeding must provide for some kind of notice, and 
 offer to the owner an opportunity to be heard, or the proceeding will 
 want the essential ingredient of due process of law. Nothing is 
 more clearly established by a weight of authority absolutely over- 
 whelming than that notice and opportunity to be heard are indispen- 
 sable to the validity of the proceeding. 
 
 In Davidson v. New Orleans, the Supreme Court of the United 
 States assumed this position to* be unquestionable. In that case an 
 assessment levied upon certain real estate in New Orleans for drain- 
 ing the swamps of that city was resisted on the ground that the pro- 
 ceeding deprived the owners of their property without due process of 
 law; and the court refused to disturb it for the reason that the own- 
 ers of the property had notice of the assessment and an opportunity 
 to contest it in the courts. After stating that much misapprehension 
 prevailed as to the meaning of the terms "due process of law," and 
 that it would be difficult to give a definition which would at once be 
 perspicuous, comprehensive, and satisfactory, the courts, speaking 
 through Mr. Justice Miller, said that it would lay down the follow- 
 ing proposition as applicable to the case: 
 
 "That whenever by the laws of a state, or by state authority, a tax, 
 assessment, servitude, or other burden is imposed upon property for 
 the public use, whether it be for the whole state or for some limited 
 portion of the community, and those laws provide for a mode of con- 
 firming or contesting the charge thus imposed, in the ordinary course 
 of justice, with notice to the person, or such proceeding in regard to 
 the property as is appropriate to the nature of the case, the judg- 
 ment in such proceedings cannot be said to deprive the owner of his 
 property without due process of law, however obnoxious it may be to 
 other objections." 96 U. S. 104. 
 
 In Stuart v. Palmer the meaning of these terms is elaborately con- 
 sidered by the court of appeals of New York with reference to numer- 
 ous adjudications on the subject. In that case a law of the state 
 imposed an assessment on certain real property for a local improve- 
 ment without notice to the owner, and a hearing or an opportunity
 
 SAN MATED CO. V. S. P. R. R. CO. 183 
 
 to be heard by him, and the court held that it had the effect of de- 
 priving him of his property without due process of law, and 
 was therefore unconstitutional. Mr. Justice Earl, speaking for the 
 court, said: 
 
 "1 am of the opinion that the constitution sanctions no law im- 
 posing such an assessment without a notice to, and a hearing, or an 
 opportunity of hearing, by the owners of the parcel to be assessed. 
 It is not enough that the owners may by chance have notice, or that 
 they may, as a matter of favor, have a hearing. The law must re- 
 quire notice to them, and give them a right to a hearing, and an op- 
 portunity to be heard. It matters not, upon the question of ^ the con- 
 stitutionality of such a law, that the assessment has in fact been fairly 
 apportioned. The constitutionality of a law is to be tested, not by 
 what has been done under.it, but what may, by its authority, be 
 done. The legislature may prescribe the kind of notice, and the mode 
 in which it shall be given, but it cannot dispense with all notice." 
 And, again, that "no case, it is believed, can be found in which it 
 was decided that this constitutional guaranty (against depriving one 
 of his property without due process of law) did not extend to cases of 
 assessments ; and yet we may infer, from certain dicta of judges, that 
 their attention was not called to it, or that they lost sight of it in 
 the cases which they were considering. It has sometimes been inti- 
 mated that a citizen is not deprived of his property, within the mean- 
 ing of this constitutional provision, by the imposition of an assess- 
 ment. It might as well be said that he is not deprived of his prop- 
 erty by a judgment entered against him. A judgment does not take 
 property until it is enforced, and then it takes the real or personal 
 property of the debtor. So an assessment may generally be enforced, 
 not only against the real estate upon which it is a lien, but, as in 
 this case, against the personal property of the owner also; and by it he 
 may just as much be deprived of his property, and in the same sense, 
 as the judgment debtor is deprived of his by the judgment." 74 N. 
 Y. 188, 195. 
 
 We concur fully in the views thus forcibly expressed. 
 
 We have already extended this opinion to a great length, and we 
 do not think it necessary or important to notice other positions urged 
 by counsel with great learning and ability against the validity of the 
 taxes for which the present action is brought We are satisfied that 
 the assessment upon which they were levied is invalid and void, and 
 judgment must accordingly be entered on the demurrer for the de-
 
 184 LIMITATIONS OF THE TAXING POWER. 
 
 fendant, and, by stipulation of parties, the judgment must be made 
 final. 
 
 See also Matter of McPherson, 104 N. Y. 306, infra. But a hearing prior 
 to the assessment of the tax would not seem to be necessary in the case of 
 specific taxes such as licenses taxes. See McMillen v. Anderson 95 U. S. 37 
 infra. 
 
 2. Vested Rights. 
 ORE V. OILMAN. 
 
 Supreme Court of the United States. October, 1901. 
 183 United States, 278. 
 
 Mr. Justice SHIRAS delivered the opinion of the court. 
 
 This is the case of a so-called transfer tax imposed under the laws 
 of the State of New York. The various contentions of the plaintiffs 
 in error, attacking the validity of the tax, were overruled by the 
 courts of the State, and the cause is now before us on the general 
 proposition that by the proceedings the plaintiffs in error, or those 
 whom they represent as trustees and guardians, have been deprived of 
 the equal protection of the laws of the State of New York, their priv- 
 ileges and immunities as citizens of the United States having been 
 abridged, and their property taken without due process of law, in vio- 
 lation of .the Fourteenth Amendment to the Constitution of the 
 United States, and likewise, as to a portion of the property affected, 
 in violation of section 10 of article 1 of the Constitution of 
 the United States. 
 
 The first question presented arises out of subdivision 5 of section 
 220 of the tax law of the State of New York, which reads as fol- 
 lows: 
 
 "5. Whenever any person, or corporation, shall exercise a power 
 of appointment, derived from any disposition of 'property, made 
 either before or after the passage of this act, such appointment, when 
 made, shall be deemed a transfer, taxable, under the provisions of 
 this act, in the same manner as though the property, to which such 
 appointment relates, belonged absolutely to the donee of such power, 
 and had been bequeathed, or devised, by such donee by will; and 
 whenever any person, or corporation, possessing such a power of ap- 
 pointment, so derived, shall omit, or fail, to exercise the same within 
 the time provided therefor, in whole or in part, a transfer, taxable 
 under the provisions of this act, shall be deemed to take place to the
 
 OER V. OILMAN. 185 
 
 extent of such omissions, or failure, in the same manner as though 
 the persons, or corporations, thereby becoming entitled to the posses- 
 sions, or enjoyment of the property to which such power related, had 
 succeeded thereto, by a will of the donee, of the power failing to ex- 
 ercise such power, taking effect at the time of such omission, or fail- 
 ure." 
 
 This enactment became a law on April 16, 1897. David Dows, 
 Senior, died March 30, 1890, leaving a will containing a power of 
 appointment to his son, David Dows, Junior, which will was duly 
 admitted to probate by the Surrogate's Court on April 14, 1890. 
 David Dows, Junior, died on January 13, 1899, leaving a will, in 
 which he exercised the power of appointment given him in the will 
 of his father, and apportioned the property, which was the subject of 
 the power, among his three sons, who are represented in this litiga- 
 tion by the plaintiff in error. 
 
 It is claimed that, under the law of the State of New York as it 
 stood at the time of his death, in 1890, David Dows, Senior, had a 
 legal right to transfer, by will, his property or any interest therein, 
 to his grandchildren, without any diminution, or impairment, then 
 imposed by the law of the State upon the exercise of that right ; that 
 his said grandchildren acquired vested rights in the property so trans- 
 ferred, and that the subsequent law, whose terms have been above 
 transcribed, operates to diminish and impair those vested rights. In 
 other words, it is claimed that it is not competent for the State, by 
 a subsequent enactment, to exact a price or charge for a privilege 
 lawfully exercised in 1890, and to thus take from the grandchildren 
 a portion of the very property the full right to which had vested in 
 them many years before. 
 
 We here meet, in the first place, the question of the construction 
 of the will of David Dows, Senior. Under and by virtue of that 
 will, did the property, whose transfer is taxed, pass to and become 
 vested in the grandchildren, or did the property not become vested 
 in them until and by virtue of the will of David Dows, Junior, exer- 
 cising the power of appointment? The answer to be given to this 
 question must, of course, be that furnished us by the Court of Ap- 
 peals in this case. Matter of Dows, 167 N. Y. 227 : 
 
 "Whatever be the technical source of title of a grantee under a 
 power of appointment, it cannot be denied that, in reality and sub- 
 vstance, it is the execution of the power that gives the grantee the 
 property passing under it. The will of Dows, Senior, gave his son 
 s\ power of appointment, to be exercised only in a particular man- 
 ner, to wit, by last will and testament. If, as said by the Supreme
 
 186 LIMITATIONS OP THE TAXING POWER. 
 
 Court of the United States, the right to take property by devise is 
 not an inherent or natural right, but a privilege accorded by the 
 State, which it may tax or charge for, it follows that the request of 
 a testator to make a will or testamentary instrument is equally a 
 privilege and equally subject to the taxing power of the State. When 
 David Dows, Senior, devised this property to the appointees under 
 the will of his son he necessarily subjected it to the charge that the 
 State might impose on the privilege accorded to the son of making 
 a will. That charge is the same in character as if it had been laid 
 on the inheritance of the estate of the son himself, that is, for the 
 privilege of succeeding to property under a will." 
 
 It will be seen that> in putting this construction upon the will of 
 David Dows, Senior, the Court of Appeals not merely construed 
 the words of the will but, by implication, applied to the case the pro- 
 visions of subdivision 5 of section 220, under which the transfer tax 
 in question was imposed, and thus construed the tax law and affirmed 
 its validity. 
 
 While it is settled law that this court will follow the construction 
 put by the State courts upon wills devising property situated within 
 the State, and while it is also true that we adopt the construction of 
 its own statutes by the State courts, a question may remain whether 
 the statute, as so construed, imports a violation of any of the rights 
 secured by applicable provisions of the Constitution of the United 
 States. And such is the contention here. 
 
 This court has no authority to revise the statutes of New York 
 upon any grounds of justice, policy or consistency to its own consti- 
 tution. Such questions are concluded by the decision of the legis- 
 lative and judicial authorities of the State. 
 
 In Carpenter v. Pennsylvania, 17 How. 456, the question arose as 
 to the validity, in its Federal aspect, of a law of the State of Penn- 
 sylvania imposing an inheritance tax on personal property which had 
 passed into the possession of an executor before the passage of the 
 act, and which was held by him for the purpose of distribution among 
 the legatees, who were collateral relatives to the decedent. The act 
 was held valid by the Supreme Court of the State, and was brought 
 up to this court by a writ of error, where it was contended that such 
 an act was in its nature an ex post facto law, which took the prop- 
 erty of an individual to the use of the State, because of a fact which 
 had occurred prior to the passage of the law, and also that the law, 
 in its retroactive effect, impaired the obligation of a contract, in that 
 it was alleged to absolve the executor from his contract, implied in 
 law, to pay over the legacies to those entitled to them, just to the
 
 ORR V. GILMAX. 1ST 
 
 extent that the law required him to pay to the State. The opinion 
 of the court, delivered by Mr. Justice Campbell, was, in part, as 
 follows : 
 
 "The validity of the act, as affecting successions to open after its 
 enactment, is not contested ; nor is the authority of the State to levy 
 taxes upon personal property belonging to its citizens, but situated 
 beyond its limits, denied. But the complaint is that the application 
 of the act to a succession already in the course of settlement, and 
 which had been appropriated by the last will of decedent, involved 
 an arbitrary change of the existing laws of inheritance to the extent 
 of this tax, in the sequestration of that amount for the uses of the 
 State; that the rights of the residuary legatees were vested at the 
 death of the testator, and from that time those persons were non- 
 residents, and the property taxed was also beyond the State; and that 
 the State has employed its power over the executor and the property 
 within its borders, to accomplish a measure of wrong and injustice; 
 that the act contains the imposition of a forfeiture or penalty, and 
 is ex post facto. 
 
 "It is, in some sense, true that the rights of donees under a will 
 are vested at the death of the testator; and that the acts of admin- 
 istration which follow are conservatory means, directed by the State 
 to ascertain those rights, and to accomplish an effective translation 
 of the dominion of the decedent to the objects of his bounty; and 
 the legislation adopted with any other aim than this would justify 
 criticism, and perhaps censure. But, until the period for distribution 
 arrives, the law of the decedent's domicil attaches to the property, 
 and all other jurisdictions refer to the place of the domicil as thai 
 where the distribution should be made. The will of the testator is 
 proven there, and his executor receives his authority to collect the 
 property, by the recognition of the legal tribunals of that place. The 
 personal estate, so far as it has a determinate owner, belongs to the 
 executor thus constituted. The rights of the donee are subordinate 
 to the conditions, formalities and administrative control, prescribed 
 by the State in the interests of its public order, and are only irre- 
 vocably established upon its abdication of this control at the period 
 of distribution. If the State, during this period of administration 
 and control by its tribunals and their appointees, thinks fit to im- 
 pose a tax upon the property, there is no obstacle in the Constitution 
 and laws of the United States to prevent it. Ennis v. Smith, 14 
 How. 400." 
 
 It is true that this case was decided before the adoption of the
 
 18.8 LIMITATIONS OF THE TAXING POWER. 
 
 Fourteenth Amendment, but we think it correctly defined the limits 
 of jurisdiction between the state and Federal governments in respect 
 to the control of the estates of decedents, both as they were regarded 
 before and have been regarded since the adoption of the Fourteenth 
 Amendment. It has never been held that it was the purpose or func- 
 tion of that amendment to change the systems and policies of the 
 States in regard to the devolution of estates, or to the extent of the 
 taxing power over them. 
 
 In the light of the principles thus established we are unable to 
 see in this legislation of the State of New York, as construed by its 
 highest court, any infringement of the salutary provisions of the 
 Fourteenth Amendment. There are involved no arbitrary or unequal 
 regulations, prescribing different rates of taxation on property or per- 
 sons in the same condition. The provisions of the law extend alike 
 to all estates that descend or devolve upon the death of those who 
 once owned them. The moneys raised by the taxation are applied 
 to the lawful uses of the State, in which the legatees have the same 
 interests with the other citizens. Nor is it claimed that the amount 
 or rate of the taxation is excessive to the extent of confiscation. 
 
 Another objection made to the judgment of the Court of Appeals, 
 affirming the Surrogate's order, is that the tax imposed upon trans- 
 fers made under a power of appointment is a tax upon property and 
 not on the right of succession, and that, as a portion of the fund 
 was invested in incorporated companies liable to taxation on their 
 own capital, and in certain bonds of the State of New York, and in 
 bonds of the city of New York exempt by statute from taxation, such 
 exemption formed part of the contract under which said securities 
 were purchased, and the tax imposed and the proceedings to enforce 
 it were in violation of section 10 of article 1 of the Constitution of 
 the United States forbidding the States to pass laws impairing the 
 obligation of contracts. 
 
 The Court of Appeals overruled the proposition that the transfer 
 tax in question was a tax upon property and not upon the right of 
 succession, and held that when David Dows, Senior, devised this 
 property to the appointees under the will of his son he necessarily 
 subjected it to the charge that the State might impose on the priv- 
 ilege accorded to the son of making a will and that the charge is 
 the same in character as if it had been laid on the inheritance of 
 the estate of the son himself, that is, for the privilege of succeeding 
 to property under a will.
 
 SANTA CLARA CO. V. S. P. R. R. CO. 189 
 
 In reaching this conclusion the Court of Appeals cited not only 
 various Xew York cases but several decisions of this court, the prin- 
 ciples of which were thought to be applicable. Magoun v. Illinois 
 Trust Co., 170 U. S. 283; Plummer v. Coler, 178 U. S. 115; Knowl- 
 ton v. Moore, 178 U. S. 41 ; Murdoch v. Ward, 178 U. S. 139. 
 
 We think it unnecessary to enter upon another discussion of a sub- 
 ject so recently considered in the cases just cited, and that it is suf- 
 ficient to say that, in our opinion, the Court of Appeals did not err 
 when it held that a transfer or succession tax, not being a direct tax 
 upon property, but a charge upon a privilege exercised or enjoyed 
 under the law of the State, does not, when imposed in cases where 
 the property passing consists of securities exempt by statute, impair 
 the obligation of a contract within the meaning of the Constitution 
 of the United States. 
 
 The judgment of the Court of Appeals of the State of New York 
 affirming the judgment of the Surrogate's Court of New York 
 County is 
 
 Affirmed. 
 
 Mr. Justice HARLAN concurred in the result. 
 
 See matter of Peel, 171 N. Y. 48, infra. Where the time of the transfer is 
 not fixed by statute the transfer under a power of appointment in a will 
 takes place at the time of the death of the decedent. Matter of Stewart, 131 
 N. Y. 274. Here a power of appointment was exercised so as to rest an 
 estate in the direct heirs of the person exercising the power, who were 
 collaterals of the decedent. They had to pay a collateral succession tax. 
 See also Com. v. Williams' Executors, 13 Pa. St. 29. 
 
 3. Equal Protection of the Laws. 
 
 COUNTY OF SANTA CLARA V. SOUTHERN PACIFIC R. R. 
 
 CO. 
 
 United States Circuit Court, District of California. September, 1883. 
 18 Federal Reporter 385. 
 
 FIELD, Justice. These are actions for the recovery of unpaid 
 state and county taxes levied upon certain property of the several de- 
 fendants, either for the fiscal year of 1881 or of 1882, and alleged to 
 be due to the plaintiffs, with an additional 5 per cent as a penalty 
 for their non-payment and interest. 
 
 We shall confine ourselves to the defenses made to 
 
 the assessment and tax from the alleged conflict of the provisions
 
 190 LIMITATIONS OF THE TAXING POWER. 
 
 under which they were levied, with the requirements of the fourtenth 
 amendment to the Constitution of the United States, which declares, 
 that no state shall "deprive any person of life, liberty, or property 
 without due process of law, nor deny to any person within its juris- 
 diction the equal protection of the laws." The railroad companies 
 contend that both inhibitions of this amendment were violated in the 
 assessment and taxation of their property. 
 
 The constitution of California provides for taxes on property, on 
 incomes, and on polls. The taxation on property, with which alone 
 we are concerned in this case, is to be in proportion to its value. 
 There is no provision for levying a specific tax upon any article or 
 kind of property. It declares that all property, not exempt under 
 the laws of the United States, shall, with some exceptions, be taxed 
 according to its value, to be ascertained as prescribed by law; and 
 that the word "property" shall "include moneys, credits, bonds, 
 stocks, dues, franchises, and all other matters and things, real, per- 
 sonal, and mixed, capable of private ownership." 
 
 It also declares that "a mortgage, deed of trust, contract, or other 
 obligation by which a debt is secured, shall, for the purpose of as- 
 sessment and taxation, l>e deemed and treated as an interest in the 
 property affected thereby." And that, "except as to railroad and 
 other quasi public corporations, in case of debts so secured, the value 
 of the property affected by such mortgage, deed of trust, contract, or 
 obligation, less the value of such security, shall be assessed and taxed 
 to the owner of the property, and the value of such security shall be 
 assessed and taxed to the owner thereof." 
 
 In fixing . . . the liabilities of parties to pay the 
 
 tax assessed and levied upon property subject to a mortgage, and in 
 estimating the value of sucli properties as the foundation for the 
 tax, a discrimination is made between the property held by railroad 
 and quasi public corporations, and that held by natural persons and 
 other corporations. A mortgage, as seen by the provisions of the 
 constitution above quoted, is deemed and treated, for the purposes of 
 assessment and taxation, as an interest in the property affected. At 
 common law a mortgage of property is a conveyance of the title, sub- 
 ject to a condition that if the debt secured be paid as stipulated, the 
 conveyance is to become inoperative. Until the debt secured is paid, 
 the title is in the mortgagee. By the constitution, a mortgage, for 
 the purposes of assessment and taxation, operates in like manner 
 to transfer the mortgagor's interest to the extent represented by the 
 amount secured. If such amount be half the value of the property,
 
 SANTA CLARA CO. V. S. P. R. R. CO. 191 
 
 the taxable interest of the mortgagee is an undivided half interest in 
 the property. If the amount equal or exceed the whole value of the 
 property, the taxable interest of the mortgagee embraces the entire 
 property. The value of the security can never exceed the value of 
 the property mortgaged; it mav be less, and is so if the amount se- 
 cured be less than such value. 
 
 Xow, under the constitution, when, by the execution of a mortgage, 
 a taxable interest in the property held by natural persons, or by cor- 
 porations other than railroads or quasi public, is transferred by the 
 owner to another party, or the whole taxable interest is vested in 
 him, the holder alone of such interest is taxed for it. It is assessed 
 against him as the owner of it, and against him alone could it be 
 justly assessed. But when, by a mortgage on the property of a rail- 
 road or quasi public corporation, a taxable interest in such property 
 is transferred by the corporation to another, or the whole interest is 
 vested in him, the holder of such interest is exempted from taxation 
 for it, and the corporation is assessed and taxed for it notwithstand- 
 ing the transfer. Xo account is taken of the transfer of the taxable 
 interest in the estimate of the value of the property. It is still as- 
 sessed and taxed to the original holder. 
 
 Under the provisions of the constitution, the property of the sev- 
 eral railroad companies, defendants in these cases, was assessed and 
 taxed, and in such assessment and taxation all the injurious discrim- 
 inations mentioned were applied against the companies 
 
 The principle which sanctions the elimination of one element in 
 assessing the value of property held by one party, and takes it into 
 consideration in assessing the value of property held by another 
 party, would sanction the assessment of the property of one at less 
 than its value, at a half or a quarter of it, and the property of 
 another at more than its value, at double or treble of it, accord- 
 ing to the will or caprice of the state. To-day railroad companies 
 are under its ban, and the discrimination is against their property. 
 To-morrow it may be that other institutions will incur its displeas- 
 ure. If the property of railroad companies may be thus sought out 
 and subjected to discriminating taxation, so, at the will of the state, 
 by a change of its constitution, may the property of churches, of uni- 
 versities, of asylums, of savings banks, of insurance companies, of 
 rolling and flouring mill companies, of mining companies, indeed, 
 of any corporate companies existing in the state. The principle 
 which justifies such a discrimination in assessment and taxation,
 
 192 LIMITATIONS OF THE TAXING POWER. 
 
 where one of the owners is a railroad corporation and the other a 
 natural person, would also sustain it where both owners are natural 
 persons. A mere change in the state constitution would effect this if 
 the federal constitution does not forbid it. Any difference between 
 the owners, whether of age, color, race, or sex, which the state might 
 designate, would be a sufficient reason for the discrimination. It 
 would be a singular comment upon the weakness and character of 
 our republican institutions if the valuation and consequent taxation 
 of property could vary according as the owner is white, or black, or 
 yellow, or old, or young, or male, or female. A classification of val- 
 ues for taxation upon any such ground would be abhorrent to all 
 notions of equality of right among men. Strangely, indeed, would 
 the law sound in case it read that in the assessment and taxation of 
 property a deduction should be made for mortgages thereon if the 
 property be owned by white men or by old men, and not deducted if 
 owned by black men or by young men; deducted if owned by lands- 
 men, not deducted if owned by sailors ; deducted if owned by married 
 men, not deducted if owned by bachelors; deducted if owned by men 
 doing business alone, not deducted if owned by men doing business 
 in partnerships or other associations; deducted if owned by trading 
 corporations, not deducted if owned by churches or universities; and 
 so on, making a discrimination wherever there was any difference in 
 the character or pursuit or condition of the owner. To levy taxes 
 upon a valuation of property thus made is of the very essence of 
 tyranny, and has never been done except by bad governments in evil 
 times, exercising arbitrary and despotic power. 
 
 Until the adoption of the fourteenth amendment there was no re- 
 straint to be found in the constitution of the United States against 
 the exercise of such power by the states 
 
 The first section of the fourteenth amendment places a limit upon 
 all the powers of the state, including among others, that of taxation. 
 After stating that all persons born or naturalized in the United 
 States, and subject to the jurisdiction thereof, are citizens of 
 the United States and of the state in which they reside, it declares 
 that "no state shall make or enforce any law which shall abridge the 
 privileges or immunities of citizens, of the United States, nor shall 
 any state deprive any person (dropping the designation 'citizen') of 
 life, liberty, or property, without due process of law, nor deny to any 
 person within its jurisdiction the equal protection of the laws." The 
 amendment was adopted soon after the close of the civil war, and 
 undoubtedly had its origin in a purpose to secure the newly-made cit- 
 izens in the full enjoyment of their freedom. But it is in no respect
 
 SANTA CLARA CO. V. S. P. R. R. CO. 193 
 
 limited in its operation to them. It is universal in its application, 
 extending its protective force over all men. of every race and color, 
 within the jurisdiction of the states throughout the broad domain of 
 the republic. A constitutional provision is not to be restricted in its 
 application because designed originally to prevent an existing wrong. 
 
 With the adoption of the amendment the power of the states to op- 
 press any one under any pretense or in any form was forever ended; 
 and henceforth all persons within their jurisdiction could claim equal 
 protection under the laws 
 
 Unequal taxation, so far as it can be prevented, is, therefore, with 
 other unequal burdens, prohibited by the amendment. There un- 
 doubtedly are, and always will be, more or less inequalities in the 
 operation of all general legislation arising from the different condi- 
 tions of persons from their means, business, or position in life, 
 against which no foresight can guard. But this is a very different 
 thing, both in purpose and effect, from a carefully devised scheme to 
 produce such inequality; or a scheme, if not so devised, necessarily 
 producing that result. Absolute equality may not be attainable, but 
 gross and designed departures from it will necessarily bring the leg- 
 islation authorizing it within the prohibition. The amendment is 
 aimed against the perpetration of injustice, and the exercise of arbi- 
 trary power to that end. The position that unequal taxation is not 
 within the scope of its prohibitory clause would give to it a singu- 
 lar meaning. It is a matter of history that unequal and discriminat- 
 ing taxation, leveled against special classes, has been the fruitful 
 means of oppressions, and the cause of more commotions and dis- 
 turbance in society, of insurrections and revolutions, than any other 
 cause in the world. 
 
 The fact to which counsel allude, that certain property is often 
 exempted from taxation by the states, does not at all militate against 
 this view of the operation of the fourteenth amendment in forbid- 
 ding the imposition of unequal burdens. Undoubtedly, since the 
 adoption of that amendment, the power of exemption is much more 
 restricted than formerly; but that it may be extended to property 
 used for objects of a public nature is not questioned, that is, where 
 -the property is used for the promotion of the public well-being and 
 not for any private end 
 
 That the propeeding by which the taxes claimed in these several 
 actions were levied against the railroad companies on taxable inter- 
 
 13
 
 LIMITATIONS OF THE TAXING POWEE. 
 
 ests with which they had parted was not due process of law, seems 
 to me so obviously true as to require no further illustration. . . . 
 To justify these discriminating provisions, and maintain the action 
 in face of them, the plaintiffs have taken positions involving doctrines 
 which sound strangely to those who have always supposed that the 
 constitutional guaranties extend to all persons, whatever their rela- 
 tions, and protect from spoliation all property, by whomsoever held. 
 These positions are substantially as follows: That persons cease to 
 be within the protection of the fourteenth amendment, and as such 
 entitled to the equal protection of the laws, when they become mem- 
 bers of a corporation; that property, when held by persons associated 
 together in a corporation, is subject to any disposition which the 
 state may, at its will, see fit to make; that, in any view, the property 
 upon which the taxes claimed were levied was classified by its use, 
 taken out of its general character as real and personal property, and 
 thus lawfully subjected to special taxation; and that the power of 
 the state cannot be questioned by the Southern Pacific Railroad Com- 
 pany by reason of the covenant in its mortgage. These positions are 
 not advanced by counsel in this language, nor with the baldness here 
 given; but they mean exactly what is here stated, or they mean noth- 
 ing, as will clearly appear when we analyze the language in which 
 they are presented. 
 
 Private corporations and under this head, with the exception of 
 sole corporations, with which we are not now dealing, all corpora- 
 tions other than those which are public are included private cor- 
 porations consist of an association of individuals united for some law- 
 ful purpose, and permitted to use a common name in their business 
 and have succession of membership without dissolution. . . . The 
 members do not, because of such association, lose their rights to pro- 
 tection, and equality of protection. They continue, notwithstanding, 
 to possess the same right to life and liberty as before, and also to 
 their property, except as they may have stipulated otherwise. As 
 members of this association of the artificial body, the intangible 
 thing, called by a name given by themselves their interests, it is 
 true, are undivided, and constitute only a right during the continu- 
 ance of the corporation to participate in its dividends, and on its 
 dissolution, to a proportionate share of its assets; but it is property, 
 nevertheless, and the courts will protect it, as they will any other 
 property, from injury or spoliation. 
 
 Whatever affects the property of the corporation that is, of all 
 the members united by the common name necessarily affects their 
 interests So, therefore, whenever a provision of the
 
 SANTA CLARA CO. V. S. P. R. R. CO. 195 
 
 constitution or of a law guaranties to persons protection in their 
 property, or affords to them the means for its protection, or prohib- 
 its injurious legislation affecting it, the benefits of the provision or 
 law are extended to the corporations; not to the name under which 
 different persons are united, but to the individuals composing the 
 union. The courts will always look through the name to see and 
 protect those whom the name represents 
 
 But it is urged that even with an admission of these positions, 
 property may be divided into classes and subjected to different rates; 
 that such classification may be made from inherent differences in the 
 nature of different parcels of property, and also from the different, 
 uses to which the same property may be applied; and it is sought to 
 place the tax levied in these cases under one of these heads. As al- 
 ready mentioned, the constitution of the state provides with respect 
 to property that it shall be taxed in proportion to its value; it pro- 
 vides for no specific tax upon any article. The classification of prop- 
 erty, either from its distinctive character or its peculiar use, must 
 be made within the rule prescribing taxation according to value 
 Real and personal property, differing essentially in their nature, ma\ 
 undoubtedly be subjected to different rates; real property may be 
 taxed at one rate, personal property at another. But in both cases 
 the taxes must bear a definite proportion to the value of the prop- 
 erty. So, also, if use be the ground of classification, for which a dif- 
 ferent rate of taxation is prescribed, the rate must still bear a defi- 
 nite proportion to the value. Now, there is no difference in the rate 
 of taxation prescribed by the law of the state for the property of 
 railroad corporations and that prescribed for the property of indi- 
 viduals. There is only one rate prescribed for all property. There 
 is, therefore, as said in the San Mateo Suit, no case presented for 
 the application of the doctrine of classification, either from the pecul- 
 iar character of railroad property or its use. 
 
 The ground of complaint is not that any different rate of taxation 
 is adopted, for there is none, but that a different rule is followed 
 in ascertaining the value of the property of railroad corporations, as 
 a basis of taxation, from that followed in ascertaining the value of 
 property held by natural persons. In estimating the value in one 
 ease, certain elements are considered, by which the value as a basis 
 for taxation is lessened; in estimating the value in another case, 
 those elements are omitted, by which the valuation is proportionately 
 increased. All property of railroad corporations, whether used in 
 connection with the operation of their roads or entirely distinct from
 
 196 LIMITATIONS OF THE TAXING POWER. 
 
 any such use, is estimated without regard to any mortgages thereon, 
 while the property of natural persons is valued with a deduction of 
 
 such mortgages 
 
 ,"'' "-*./ / 
 
 It follows from the views expressed that findings must be had for 
 the defendants, and judgment in their favor entered thereon. 
 
 Although corporations are persons they are not citizens and are not there- 
 fore entitled to the privileges and immunities of citizens ; Paul v. Virginia, 
 8 Wallace (U. S.) 183. 
 
 MAGOUN V. ILLINOIS TRUST AND SAVINGS BANK. 
 
 Supreme Court of the United States. October, 1897. 
 170 United States 283. 
 
 Mr. Justice McKENNA, after stating the case delivered the opinion 
 of the court. 
 
 This brings us to the law in controversy. The appellant attacks 
 both its principles and its provisions its principles as necessarily ar- 
 bitrary and its provisions as causing discriminations and creating ine- 
 quality in the burdens of taxation. 
 
 Is the act open to this criticism? The clause of the Fourteenth 
 Amendment especially invoked is that which prohibits a state deny- 
 ing to any citizen the equal protection of the laws. What satisfies 
 this equality has not been and probably never can be precisely de- 
 fined. Generally it has been said that it "only requires the same 
 means and methods to be applied impartially to all the constituents 
 of a class so that the law shall operate equally and uniformly upon 
 all persons in similar circumstances." Kentucky Railroad Tax Cases, 
 115 U. S. 321, 337. It does not prohibit legislation which is limited, 
 either in the objects to which it is directed or by the territory within 
 which it is to operate. It merely requires that all persons subjected 
 to such legislation shall be treated alike under like circumstances and 
 conditions, both in the privilege conferred and the liabilities imposed. 
 Hayes v. Missouri, 120 U. S. 68. Similar citations could be multi- 
 plied. But what is the test of likeness or unlikeness of circumstances 
 and conditions ? These expressions have almost the generality of the 
 principle they are used to expound, and yet they are definite steps 
 to precision and usefulness of definition, when connected with the 
 facts of the cases in which they are employed. With these for illus-
 
 MAGOUN V. ILLINOIS SAVINGS BANK. 197 
 
 i 
 
 tration it may be safely said that the rule prescribes no rigid equal- 
 ity and permits to the discretion and wisdom of the State a wide 
 latitude as far as interference by this court is concerned. Nor with 
 the impolicy of a law has it concern. Mr. Justice Field said, in 
 Mobile County v. Kimball, 102 U. S. 691, that this court is not a 
 harbor in which can be found a refuge from ill-advised, unequal and 
 oppressive State legislation. And he observed in another case: "It is 
 hardly necessary to say that hardship, impolicy or injustice of State 
 laws is not necessarily an objection to their constitutional validity." 
 
 The rule, therefore, is not a substitute for municipal law; it only 
 prescribes that that law have the attribute of equality of operation, 
 and equality of operation does not mean indiscriminate operation on 
 persons merely as such, but on persons according to their relations. 
 In some circumstances it may not tax A more than B, but if A be of 
 a different trade or profession than B, it may. And in matters not 
 of taxation, if A be a different kind of corporation than B, it may 
 subject A to a different rule of responsibility to servants than B, 
 Missouri Pacific Railway v. Mackey, 127 U. S. 205, to a different 
 measure of damages than B, Minneapolis and St. Louis Railway v. 
 Beckwith, 129 U. S. 26, and it permits special legislation in all of 
 its varieties. Missouri Pacific Railway v. Mackey, 127 U. S. 205; 
 Minneapolis and St. Louis Railway v. Herrick, 127 U. S. 210; Dun- 
 can v. Missouri, 152 U. S. 377. 
 
 In other words, the State may distinguish, select and classify ob- 
 jects of legislation, and necessarily this power must have a wide 
 range of discretion. It is not without limitation, of course, "Clear 
 and hostile discriminations against particular persons and classes, 
 especially such as are of unusual character, unknown to the practice 
 of our governments, might be obnoxious to the constitutional pro- 
 hibition," said Mr. Justice Bradley, in Bell's Gap Railroad v. Penn- 
 sylvania, 134 U. S. 232, 237. 
 
 And Mr. Justice Brewer, in Gulf, Colorado & Santa Fe Railway 
 v. Ellis, 165 U. S. 150, 165, after a careful consideration of many 
 cases, said : "It is apparent that the mere fact of classification is not 
 sufficient to relieve a statute from the reach of the equality clause of 
 the Fourteenth Amendment, and that in all cases it must appear not 
 only that a classification has been made, but also that it is one based 
 npon some reasonable ground some difference which bears a just 
 and proper relation to the attempted classification and is not a 
 mere arbitrary selection." 
 
 Two principles, therefore, must be reconciled in the Illinois inher- 
 itance law if it is to be sustained, the equality of protection of the
 
 198 LIMITATIONS OF THE TAXING POWEK. 
 
 laws guaranteed by the Fourteenth Amendment, and the power of 
 the State to classify persons and property. The latter principle 
 needs further consideration. What test is there of the reasonable- 
 ness of a classification of one based upon "some difference which 
 bears a just and proper relation to the attempted classification and 
 is not a mere arbitrary selection?'' Legislation special in character 
 is not forbidden by it, as we have seen. Treating mechanics as a 
 class, and giving them a lien for the amount of their work, has been 
 held reasonable. Charging a railroad corporation and not other cor- 
 porations or persons with an attorney's fee has been held unreason- 
 able,, yet the former would seem to be as much an exclusive favor as 
 the latter an exclusive burden. 
 
 Of taxation, and the case at bar is of taxation, Mr. Justice Brad- 
 ley said in the Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232, 
 and Mr. Justice Fuller in Giozza v. Tiernan, 148 U. S. 657, that 
 the fourteenth amendment was not intended to compel the state to 
 adopt an iron rule of equal taxation. 
 
 There is therefore no precise application of the rule of reasonable- 
 ness of classification, and the rule of equality permits many practical 
 inequalities. And necessarily so. In a classification for governmental 
 purposes there cannot be an exact exclusion or inclusion of persons 
 or things. Bearing these considerations in mind we can solve the 
 questions in controversy. 
 
 There are three main classes in the Illinois statute, the first and 
 second being based, respectively, on lineal and collateral relationship, 
 to the testator or intestate, and the third being composed of strangers 
 .to his blood and distant relatives. The latter is again divided into 
 four subclasses dependent upon the amount of the estate received. 
 The first two classes, therefore, depend upon substantial differences, 
 differences which may distinguish them from each other and them or 
 either of them from the other class differences, therefore, which 
 "bear a just and proper relation to the attempted classification" the 
 rule expressed in the Gulf, Colorado & Santa Fe Railway v. Ellis, 
 165 U. S. 150. And if the constituents of each class are affected 
 alike, the rule of equality prescribed by the cases is satisfied. In 
 other words, the law operates "equally and uniformly upon all per- 
 sons in similar circumstances." 
 
 But the appellant asserts discrimination, and claims that the ex- 
 emptions produce the greatest inequality. As stated above, the Su- 
 preme Court of the State of Illinois passed on and sustained the 
 law in the Drake Case, and claiming the opinion for support, the
 
 MAGUUX V. ILLINOIS SAVINGS BANK. 199 
 
 appellant contends that there are two distinct systems and princi- 
 ples applied in the act, the one basing the tax on the amount received 
 or the value of the privilege of succession; the other basing the tax 
 upon the estate owned by the decedent, irrespective of the amount 
 or value of the legacy. And discriminations hence resulting, or 
 rather which are claimed as hence resulting, are detailed. 
 
 We, however, do not read the opinion as counsel do. In answer 
 to the objection that the statute offended against uniformity or pro- 
 portion to valuation as prescribed by the constitution of Illinois, the 
 court said : 
 
 "That statute provides certain classes of property, which were a 
 part of an estate, shall be exempt from taxation under these pro- 
 visions; and when the legislature provides other classes of property, 
 some of which shall pay one dollar per hundred, others two, others 
 three and others four, and still others five, and again others six dol- 
 lars per hundred, six different classes are created under and by which 
 a tax is levied by valuation on the right of succession to a separate 
 class of property. 
 
 "The class on which a tax is thus levied is general, uniform, and 
 pertains to all species of property, included within that class. A 
 tax which affects the property within a specific class is uniform as 
 to the class, and there is no provision of the constitution which pre- 
 cludes legislative action from assessing a tax on that particular class. 
 By this act of the legislature six classes of property are created, here- 
 tofore absolutely unknown. It is those classes of property depend- 
 ing upon the estate owned l>y one dying possessed thereof which the 
 State may regulate as to its descent and the right to devise. The 
 tax assessed on classes thus created is absolutely uniform on all the 
 classes upon which it operates, and under the provisions of the stat- 
 ute is to be determined by valuation, so that every person and cor- 
 poration shall pay a tax in proportion to the value of his, her or its 
 property inherited, and is not inconsistent with the principle of tax- 
 ation fixed by the constitution, and is clearly within the sections of 
 the constitution quoted. Xo want of uniformity with one living who 
 owns property can be urged as a reason why the statute makes an 
 inconsistent rule. No person inherits property or can take by devise 
 except by the statute; and the State, having power to regulate thi? 
 question, may create classes and provide for uniformity with refer- 
 ence to classes which were before unknown." 
 
 The words which we have italicised are urged to support appel- 
 lant's contention, but it is manifest that they do not do so when con- 
 sidered in relation to that which precedes and follows them, and it
 
 200 LIMITATIONS OF THE TAXING POWER. 
 
 is, therefore, the estates which descend or are received which the 
 court decides are new property, and which are to pay a tax in pro- 
 portion to their value. 
 
 Appellant, however, says: "The progression is likewise unneces- 
 sarily arbitrary if we take the view that the tax is levied on the 
 
 amount received Under such an assumption those 
 
 taking the larger amounts are required to pay a larger rate on the 
 same sums upon which those taking smaller sums pay a smaller rate) 
 that is to say, one who receives a legacy of $10,000 pays 3 per cent, 
 or $300, thus receiving $9,700 net, while one receiving a legacy of 
 $10,001 pays 4 per cent on the whole amount, or $400.04, thus re- 
 ceiving $9,600.96, $99.04 less than the one whose legacy was actually 
 one dollar less valuable. This method is applied throughout the 
 class. Other examples might be stated." 
 
 The reasoning of appellant is based on the view that the tax is 
 one on property instead of one on the succession, as held by the Su- 
 preme Court of the State. Being on the succession, the court further 
 held, as we have seen, that the latter is to be regarded as new prop- 
 erty, and the $20,000 and other property not taxed or not, there- 
 fore, exemptions. 
 
 In this view the Illinois court is in harmony with the majority of 
 other courts of the country. We concur in the reasoning. It is true 
 that the amount of the exemption is greater in the Illinois law than 
 in any other, but the right to exempt cannot depend on that. 
 Whether it shall be $20,000 as in Illinois law or $10,000 as in that 
 of Massachusetts, or other amounts as in other laws, must depend 
 upon the judgment of the legislature of each State, and cannot be 
 subject to judicial review. If such review could ascertain the factors 
 of judgment and could apply them with indisputable wisdom to the 
 different conditions existing, it would be outside of its province to 
 do so. That manifestly is a legislative, not a judicial, function. 
 
 The first and second cases, therefore, of the statute depend upon 
 substantial distinctions and their classifications are not arbitrarv. 
 
 The provisions of the statute in regard to the tax on legacies to 
 strangers to the blood of an intestate need further comment. These 
 provisions are as follows: 
 
 "On each and every one hundred dollars of the clear market value 
 of all property and at the same rate for any less amount on all es- 
 tates of ten thousand dollars and less, three dollars; on all estates 
 over ten thousand dollars and not exceeding twenty thousand dol- 
 lars, four dollars; on all estates over twenty thousand dollars, and
 
 MAGOUN V. ILLINOIS SAVINGS BANK. 201 
 
 not exceeding fifty thousand dollars, five dollars; and on all estates 
 over fifty thousand dollars, six dollars; Provided, that an estate in 
 the above case which may be valued at a less sum than five hundred 
 dollars shall not be subject to any duty or tax." 
 
 There are four classes created, and manifestly there is equality be- 
 tween the members of each class. Inequality is only found by com- 
 paring the members of one class with those of another. It is illus- 
 trated by appellant as follows : One who receives a legacy of $10,000. 
 pays 3 per cent or $300, thus receiving $9,700 net ; while one receiv- 
 ing a legacy of $10,001 pays 4 per cent on the whole amount, or 
 $400.04, thus receiving $9,600.96, or $99.04 less than the one whose 
 legacy was actually one dollar less valuable. This method is applied 
 throughout the class. 
 
 These, however, are conceded to be extreme illustrations, and we 
 think, therefore, that they furnish no test of the practical operation 
 of the classification. When the legacies differ in substantial extent, 
 if the rate increases the benefit increases to greater degree. 
 
 If there is unsoundness it must be in the classification. The 
 members of each class are treated alike, that is to say, all who in- 
 herit $10,000 are treated alike, all who inherit any other sum are 
 treated alike. There is equality, therefore, within the classes. If 
 there is inequality it must be because the members of a class are 
 arbitrarily made such and burdened as such upon no distinctions jus- 
 tifying it. This is claimed. It is said that the tax is not in propor- 
 tion to the amount but varies with the amounts arbitrarily fixed, and 
 hence that an inheritance of $10,000 or less pays 3 per cent, and that 
 one over $10,000 pays not 3 per cent on $10,000 and an increased 
 percentage on the excess over $10,000, but an increased percentage 
 on the $10,000 as well as on the excess, and it is said, as we have 
 seen, that in consequence one who is given a legacy of ten thousand 
 and one dollars by the deduction of the tax receives $99.04 less than 
 the one who is given a legacy of $10,000. But neither case can be 
 said to be contrary to the rule of equality of the Fourteenth Amend- 
 ment. The rule does not require, as we have seen, exact equality of 
 taxation. It only requires that the law imposing it shall operate on 
 all alike under the same circumstances. The tax is not on money; 
 it is on the right to inherit; and hence a condition of inheritance, 
 and it may be graded according to the value of that inheritance. 
 The condition is not arbitrary because it is determined by that value ; 
 it is not unequal in operation because it does not levy the same per- 
 centage on every dollar; does not fail to treat "all alike under liko 
 circumstances and conditions, both in the privilege conferred and the
 
 202 LIMITATIONS OF THE TAXING POWER. 
 
 liabilities imposed." The jurisdiction of courts is fixed by amounts. 
 The right of appeal is. As was said at bar, the Congress of the 
 United States has classified the right of suitors to come into United 1 
 States courts by amounts. Regarding these alone, there is the same 
 inequality that is urged against the classification of the Illinois law. 
 All license laws and all specific taxes have in them an element of ine- 
 quality, nevertheless they are universally imposed and their legality 
 has never been questioned. We think the classification of the Illinois 
 law was in the power of the legislature to make, and the decree of 
 
 the Circuit Court is 
 
 Affirmed. 
 
 Mr. Justice BREWER dissenting. 
 
 As to the propriety of progressive inheritance taxes under some of the 
 state constitutions see note to Matter of Mayor, 11 Johnson 77, Infra. See also 
 Knowlton v. Moore, 178 U. S. 41, Infra. 
 
 IV. DIRECT TAXES. 
 SPRINGER V. UNITED STATES. 
 
 Supreme Court of the United States. October, 1880. 
 102 United States 586. 
 
 Mr. Justice SWAYNE delivered the opinion of the 
 
 court. 
 
 The central and controlling question in this case is whether the 
 tax which was levied on the income, gains, and profits of the plaintiif 
 in error, as set forth in the record, and by pretended virtue of the 
 acts of Congress and parts of acts therein mentioned, is a direct tax. 
 It is fundamental with respect to the rights of the parties and result 
 of the case 
 
 The clauses of the constitution bearing on the subject are a^ 
 follows : 
 
 "Representatives and direct taxes shall be apportioned among the 
 several States which may be included within this Union, according to 
 their respective numbers, which shall be determined by adding to 
 the whole number those bound to service for a term of years, and 
 
 excluding Indians not taxed, three-fifths of all other persons 
 
 No capitation or other direct tax shall be laid unless in pro- 
 portion to the census hereinbefore directed to be taken."
 
 Sl'UIXGEH V. UNITED STATES. :>(>:', 
 
 Was the tax here in question a direct tax? If it was, not hav- 
 ing been laid according to the requirements of the constitution, it 
 must be admitted that the laws imposing it, and the proceedings 
 taken under them by the assessor and collector for its imposition 
 and collection, were all void. 
 
 There are four adjudications by this court to be considered. They 
 have an important, if not a conclusive, application to the case in 
 hand. In Ilylton v. United States, supra [3 Dallas, 171], a tax had 
 been laid upon pleasure-carriages. The plaintiff in error insisted 
 that the tax was void, because it was a direct tax, and had not been 
 apportioned among the States as required by the Constitution, where 
 such taxes are imposed. The case was argued on both sides by 
 counsel of eminence and ability. It was heard and determined by 
 four judges, Wilson. Paterson, Chase, and Iredell. The three first 
 named had been distinguished members of the constitutional conven- 
 tion. Wilson was on the committee that reported the completed 
 draft of the instrument, and warmly advocated its adoption in the 
 State convention of Pennsylvania. The fourth was a member of the 
 convention of Xorth Carolina that adopted the Constitution. The 
 case was decided in 1795. The judges were unanimous. The tax 
 was held not to be a direct tax. Each judge delivered a separate 
 opinion. Their judgment was put on the ground indicated by Mr. 
 Justice Chase, in the following extract from his opinion: 
 
 "It appears to me that a tax on carriages cannot be laid by the 
 rule of apportionment without very great inequality and injustice. 
 For example, suppose two States equal in census to pay eighty thou- 
 sand dollars each by a tax on carriages of eight dollars on every car- 
 riage; and in one State there are one hundred carriages and in the 
 other one thousand. The owners of carriages in one State would 
 pay ten times the tax of owners in the other. A, in one State, would 
 pay for his carriage eight dollars; but B, in the other State, would 
 pay for his carriage eighty dollars/' 
 
 It was well held that where such evils would attend the appor- 
 tionment of a tax, the Constitution could not have intended that an 
 apportionment should be made. This view applies with even greater 
 force to the tax in question in this case. Where the population is 
 large and the incomes are few and small, it would be intolerably 
 oppressive. 
 
 The difference in the ability of communities, without reference to 
 numbers, to pay any taxes is forcibly remarked upon by McCulloh
 
 204 LIMITATIONS OF THE TAXING POWER. 
 
 in his article on taxation in the Encyclopaedia Britannica, vol. xxi, 
 (old ed.), P. 75. 
 
 Mr. Justice Chase said further, "That he would give no judicial 
 opinion upon the subject, but that he was inclined to think that 
 direct taxes contemplated by the Constitution were only two, a cap- 
 itation tax and a tax on land." 
 
 Mr. Justice Iredell said: "Perhaps a direct tax, in the sense of 
 the Constitution, can mean nothing but a tax on something insep- 
 arably annexed to the soil A land or poll tax may 
 
 be considered of this description. The latter is to be so considered, 
 particularly under the present Constitution, on account of the slaves 
 in the Southern States, who give a ratio in the representation in the 
 population of three to five." 
 
 Mr. Justice Paterson said, he never entertained a doubt "that the 
 principal, he would not say the only, .objects contemplated by the 
 Constitution as falling within the rule of apportionment, were a 
 capitation tax and a tax on land." From these views the other 
 judges expressed no dissent. 
 
 "Ellsworth, the Chief Justice, sworn into office that morning, not 
 having heard the whole argument, declined taking any part in the 
 decision." 8 Wall. 545. Gushing, from ill-health did not sit in the 
 case. It has been remarked that if they had been dissatisfied with 
 the result, the question involved being so important, doubtless a re- 
 argument would have been had. 
 
 In Pacific Insurance Co. v. Soule, 7 Wall. 433, the taxes in ques- 
 tion were upon the receipts of such companies from premiums and 
 assessments, and upon all sums made or added, during the year, to 
 their surplus or contingent funds. This court held unanimously that 
 the taxes were not direct taxes, and that they were valid. 
 
 In Veazie Bank v. Fenno, supra [8 Wall. 533], the tax which 
 came under consideration was one of ten per cent upon the notes of 
 State banks paid out by other banks, State or national. The same 
 conclusions were reached by the court as in the preceding case. Mr. 
 Chief Justice Chase delivered the opinion of the court. In the 
 course of his elaborate examination of the subject he said, "It may 
 be rightly affirmed that, in the practical construction of the Consti- 
 tution by Congress, direct taxes have been limited to taxes on land 
 and appurtenances and taxes on polls, or capitation taxes." 
 
 In Scholey v. Rew (23 Wall. 331), the tax involved was a suc- 
 cession tax, imposed by the acts of Congress of June 30, 1864, and 
 July 13, 1866. It was held that the tax was not a direct tax, and 
 that it was constitutional and valid. In delivering the opinion of
 
 SPRINGER V. UNITED STATES. 205 
 
 the court, Mr. Justice Clifford, after remarking that the tax there 
 in question was not a direct tax, said: "Instead of that, it is 
 plainly an excise tax or duty, authorized by sect. 1, art. 8, of the 
 Constitution, which vests the power in Congress to lay and collect 
 taxes, duties, imposts, and excises to pay the debts and provide for 
 the common defence and public welfare." 
 
 He said further: "Taxes on houses, lands, and other permanent 
 real estate have always been deemed to be direct taxes, and capita- 
 tion taxes, by the express words of the Constitution, are within the 
 same category; but it has never been decided that any other legal 
 exactions for the support of the Federal government fall within the 
 condition that unless laid in proportion to numbers the assessment 
 is invalid." 
 
 All these cases are undistinguishable in principle from the case 
 now before us, and they are decisive against the plaintiff in error. 
 
 The question, what is a direct tax, is one exclusively in American 
 jurisprudence. The text-writers of the country are in entire accord 
 upon the subject. 
 
 Mr. Justice Story says all taxes are usually divided into two 
 classes, those which are direct and those which are indirect, and 
 that "under the former denomination are included taxes on land 
 and real property, and, under the latter, taxes on consumption." 1 
 Const., sect. 950. 
 
 Chancellor Kent, speaking of the case of Hylton v. United States, 
 says: "The better opinion seems to be that the direct taxes con- 
 templated by the Constitution were only two; viz, a capitation or 
 poll tax and a tax on land." 1 Com. 257. See also Cooley, Tax- 
 ation, p. 5, note 2; Pomeroy, Const. Law, 157; Sharwood's Black- 
 stone, 308, note; Rawle, Const. 30; Sergeant, Const. 305. 
 
 We are not aware that any writer, since Hylton v. United States 
 was decided, has expressed a view of the subject different from that 
 of these authors. 
 
 Our conclusions are, that direct taxes, within the meaning of the 
 Constitution, are only capitation taxes, as expressed in that instru- 
 ment, and taxes on real estate; and that the tax of which the 
 plaintiff in error complains is within the category of an excise or 
 duty. Pomeroy, Const. Law, 177; Pacific Insurance Co. v. Soule, 
 and Scholey v. Rew, supra. 
 
 Against the considerations, in one scale, in favor of these propo- 
 sitions, what has been placed in the other, as a counterpoise? Our 
 answer is, certainly nothing of such weight, in our judgment, as to 
 require any special reply.
 
 206 LIMITATIONS OF THE TAXING POWER. 
 
 The numerous citations from the writings of foreign political 
 economists, made by the plaintiff in error, are sufficiently answered 
 by Hamilton in his brief, before referred to. 
 
 Judgment affirmed. 
 
 POLLOCK V. FARMERS' LOAN AND TRUST CO. 
 
 Supreme Court of the United States. May, 1895. 
 158 United States, 601. 
 
 These cases were decided on the 8th of April, 1895, 157 U. S. 
 429. Thereupon the appellants filed a petition for a rehearing. 
 Mr. Chief Justice FULLER delivered the opinion of the court. 
 
 The Constitution divided Federal taxation into two 
 
 great classes, the class of direct taxes, and the class of duties, im- 
 posts, and excises; and prescribed two rules which qualified the 
 grant of power as to each class. 
 
 Our previous decision was confined to the consideration of the 
 validity of the tax on the income from real estate, and on the in- 
 come from municipal bonds. The question thus limited was whether 
 such taxation was direct or not, in the meaning of the Constitution; 
 and the court went no farther, as to the tax on the income from 
 real estate, than to hold that it fell within the same class as the 
 source whence the income was derived, that is, that a tax upon the 
 realty and a tax upon the receipts therefrom were alike direct; while 
 as to the income from municipal bonds, that could not be taxed be- 
 cause of want of power to tax the source, and no reference was made 
 to the nature of the tax as being direct or indirect. 
 
 We are now permitted to broaden the field of inquiry, and to de- 
 termine which of the two great classes a tax upon a person's entire 
 income, whether derived from rents, or products, or otherwise, of 
 real estate, or from bonds, stocks, or other forms of personal prop- 
 erty, belongs; and we are unable to conclude that the enforced sub- 
 traction from the yield of all the owner's real or personal property, 
 in the manner prescribed is so different from a tax upon the prop- 
 erty itself, that it is not a direct, but an indirect tax, in the mean- 
 ing of the Constitution. 
 
 We know of no reason for holding otherwise than that the words;
 
 POLLOCK V. FAEMEBS' LOAX AXD TBUST CO. 20T 
 
 "direct taxes," on the one hand, and "duties, imposts and excises," 
 on the other, were used in the Constitution in their natural and ob- 
 vious sense. Nor, in arriving at what those terms embrace, do we 
 perceive any ground for enlarging them beyond, or narrowing them 
 within, their natural and obvious import at the time the Constitu- 
 tion was framed and ratified. 
 
 The reasons for the clauses of the Constitution in respect of direct 
 taxation are not far to seek. The States, respectively, possessed 
 plenary powers of taxation. They could tax the property of their 
 citizens in such manner and to such extent as they saw fit; they 
 had unrestricted power to impose duties or imposts on imports from 
 abroad, and excises on manufactures, consumable commodities, or 
 otherwise. They gave up the great sources of revenue derived from 
 commerce; they retained the concurrent power of levying excises, 
 and duties if covering anything other than excises ; but in respect of 
 them the range of taxation was narrowed by the power granted over 
 interstate commerce, and by the danger of being put at disadvan- 
 tage in dealing with excises on manufactures. They retained the 
 power of direct taxation, and to that they looked as their chief re- 
 source; but even in respect of that, they granted the concurrent 
 power, and if the tax were placed by both governments on the same 
 subject, the claim of the United States had preference. Therefore, 
 they did not grant the power of direct taxation without regard to 
 their own condition and resources as States; but they granted the 
 power of apportioned direct taxation, a power just as efficacious to 
 serve the needs of the general government, but securing to the 
 States the opportunity to pay the amount apportioned, and to recoup 
 from their own citizens in the most feasible way, and in harmony 
 with their systems of local self-government. If in the changes of 
 wealth and population in particular States, apportionment produced 
 inequality, it was an inequality stipulated for, just as the equal rep- 
 resentation of the States, however small, in the Senate, was stipu- 
 lated for. The Constitution ordains affirmatively that each State 
 shall have two members of that body, and negatively that no State 
 shall by amendment be deprived of its equal suffrage in the Senate 
 without its consent. The Constitution ordains affirmatively that 
 representatives and direct taxes shall be apportioned among the sev- 
 eral States according to numbers, and negatively that no direct tax 
 shall be laid unless in proportion to the enumeration. 
 
 The founders anticipated that the expenditures of the States, their 
 counties, cities, and towns, would chiefly be met by direct taxation
 
 208 LIMITATIONS OF THE TAXING POWEE. 
 
 on accumulated property, while they expected that those of the Fed- 
 eral government would be for the most part met by indirect taxes. 
 And in order that the power of direct taxation by the general gov- 
 ernment should not be exercised, except on necessity; and, when the 
 necessity arose, should be so exercised as to leave the States at lib- 
 erty to discharge their respective obligations, and should not be so 
 exercised, unfairly and discriminately, as to particular States or 
 otherwise, by a mere majority vote, possibly of those whose con- 
 stituents were intentionally not subjected to any part of the burden, 
 the qualified grant was made. Those who made it knew that the 
 power to tax involved the power to destroy, and that, in the lan- 
 guage of Chief Justice Marshall, in McCulloch v. Maryland, "the 
 only security against the abuse of this power is found in the struc- 
 ture 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." 4 Wheat. 428. And 
 they retained this security by providing that direct taxation and rep- 
 resentation in the lower house of Congress should be adjusted on the 
 same measure. 
 
 Moreover, whatever the reasons for the constitutional provisions, 
 there they are, and they appear to us to speak in plain language 
 
 It is said that a tax on the whole income of property is not a 
 direct tax in the meaning of the Constitution, but a duty, and, as 
 a duty, leviable without apportionment, whether direct or indirect. 
 We do not think so. Direct taxation was not restricted in one 
 breath, and the restriction blown to the winds in another. 
 
 Cooley (On Taxation, p. 3) says that the word "duty" ordinarily 
 "means an indirect tax imposed on the importation, exportation, or 
 consumption of goods;" having "a broader meaning than custom,, 
 which is a duty imposed on imports or exports," that "the term 
 impost also signifies any tax, tribute or duty, but it is seldom ap- 
 plied to any but the indirect taxes. An excise duty is an inland im- 
 post, levied upon articles of manufacture or sale, and also upon 
 licenses to pursue certain trades or to deal in certain commodities." 
 
 In the Constitution, the words "duties, imposts and excises" are 
 put in antithesis to direct taxes. Gouverneur Morris recognized this 
 in his remarks in modifying his celebrated motion, as did Wilson in 
 approving of the motion as modified. 5 Ell. Deb. (Madison Papers), 
 302. And Mr. Justice Story, in his Commentaries on the Constitu- 
 tion, ( 952), expresses the view that it is not unreasonable to pre- 
 sume that the word "duties" was used as equivalent to "customs" 
 or "imposts" by framers of the Constitution, since in other clauses
 
 POLLOCK V. FARMERS' LOAN AND TRUST CO. 209 
 
 it was provided that "No tax or duty shall be laid on articles ex- 
 ported from any State," and that "No state shall, without the con- 
 sent of Congress, lay any imposts or duties on imports or exports, 
 except what may be absolutely necessary for executing its inspec- 
 tion laws;" and he refers to a letter of Mr. Madison to Mr. Cabell, 
 of September 18, 1828, to that effect. 3 Madison's Writings 636. 
 
 In this connection it may be useful, though at the risk of repeti- 
 tion, to refer to the views of Hamilton and Madison as thrown into 
 relief in the pages of the Federalist, and in respect of the enactment 
 of the carriage tax act, and again to briefly consider the Hylton 
 Case, 3 Dall. 171, so much dwelt on in argument. 
 
 The act of June 5, 1794, c. 45, 1 Stat. 373, laying duties upon 
 carriages for the conveyance of persons, was enacted in a time of 
 threatened war. Bills were then pending in Congress to increase 
 the military force of the United States, and to authorize increased 
 taxation in various directions. It was, therefore, as much a part of 
 a system of taxation in war times, as was the income tax of the war 
 of the rebellion. The bill passed the House on the twenty-ninth 
 of May, apparently after a very short debate. Mr. Madison and Mr. 
 Ames are the only speakers on that day reported in the Annals. 
 "Mr. Madison objected to this tax on carriages as an unconstitu- 
 tional tax; and, as an unconstitutional measure, he would vote 
 against it." Mr. Ames said : "It was not to be wondered at if he, 
 coming from so different a part of the country, should have a differ- 
 ent idea of this tax from the gentleman who spoke last. In Massa- 
 chusetts, this tax had long been known; and there it was called an 
 excise. It was difficult to define whether a tax is direct or not. He 
 had satisfied himself that this was not so." Annals, 3d Cong. 730. 
 
 On the first of June, 1794, Mr. Madison wrote to Mr. Jefferson : 
 "The carriage tax, which only struck at the Constitution, has passed 
 the House of Representatives." 3 Madison's Writings 18. The bill 
 then went to the Senate, where, on the third day of June, it "was 
 considered and adopted." Annals, 3d Cong. 119, and on the fol- 
 lowing day it received the signature of President Washington. On 
 the same third day of June the Senate considered "an act laying 
 certain duties upon snuff and refined sugar:" "an act making fur- 
 ther provisions for securing and collecting the duties on foreign and 
 domestic distilled spirits, stills, wines, and teas;" "an act for the 
 more effectual protection of the Southwestern frontier;" "an act 
 laying additional duties on licenses for selling wines and foreign 
 distilled spirituous liquors by retail:" and "an act laying duties on 
 property sold at auction." 
 14
 
 210 LIMITATIONS OF THE TAXING POWEE. 
 
 It appears then that Mr. Madison regarded the carriage tax as 
 unconstitutional, and accordingly gave his vote against it, although 
 it was to a large extent, if not altogether, a war measure. 
 
 Where did Mr. Hamilton stand? At that time he was Secretary 
 of the Treasury, and it may therefore be assumed, without proof, that 
 he favored the legislation. But upon what ground? He must, of 
 course, have come to the conclusion that it was not a direct tax. 
 Did he agree with Fisher Ames, his personal and political friend, 
 that the tax was an excise? The evidence is overwhelming that he 
 did. 
 
 In the thirtieth number of the Federalist, after depicting the help- 
 less and hopeless condition of the country growing out of the ina- 
 bility of the confederation to obtain from the States the moneys 
 assigned to its expenses, he says: "The more intelligent adversaries 
 of the new Constitution admit the force of this reasoning; but they 
 qualify their admission, by a distinction between what they call in- 
 ternal and external taxations. The former they would reserve to the 
 state governments; the latter, which they explain into commercial 
 imposts, or rather duties on imported articles, they declare them- 
 selves willing to concede to the Federal head." In the thirty-sixth 
 number, while still adopting the division of his opponents, he says: 
 "The taxes intended to be comprised under the general denomina- 
 tion of internal taxes, may be subdivided into those of the direct and 
 
 those of the indirect kind As to the latter, by which 
 
 must be understood duties and excises on articles of consumption, 
 one is at a loss to conceive, what can be the nature of the difficulties 
 apprehended." Thus we find Mr. Hamilton, while writing to induce 
 the adoption of the Constitution, first, dividing the powers of tax- 
 ation into external and internal, putting into the former the power 
 of imposing duties on imported articles and into the latter all re- 
 maining powers; and, second, dividing the latter into direct and 
 indirect, putting into the latter, duties and excises on articles of con- 
 sumption. 
 
 It seems to us to inevitably follow that in Mr. Hamilton's judg- 
 ment at that time all internal taxes except duties and excises on 
 articles of consumption, fell into the category of direct taxes. 
 
 Did he in supporting the carriage tax bill, change his views in 
 this respect? His argument in the Ilylton case in support of the 
 law enables us to answer this question. It was not reported by Dal- 
 las, but was published in 1851 by his son in the edition of all Ham- 
 ilton's writings except the Federalist. After saying that we shall 
 seek in vain for any legal meaning of the respective terms "direct
 
 POLLOCK V. FARMERS' LOAX AND TRUST CO. 211 
 
 and indirect taxes," and after forcibly stating the impossibility of 
 collecting the tax if it is to be considered a direct tax, he says, 
 doubtingly: "The following are presumed to be the only direct 
 taxes. Capitation or poll taxes. Taxes on lands and buildings. 
 General assessments, whether on the whole property of individuals, 
 or on their whole real or personal estate; all else must of necessity 
 be considered as indirect taxes." "Duties, imposts and excises appear 
 to be contradistinguished from taxes." "If the meaning of the word 
 excise is to be sought in the British statutes, it will be found to in- 
 clude the duty on carriages, which is there considered as an excise/' 
 "Where so important a distinction in the Constitution is to be real- 
 ized, it is fair to seek the meaning of terms in the statutory lan- 
 guage of that country from which our jurisprudence is derived." 7 
 Hamilton's Works, 848. Mr. Hamilton, therefore, clearly supported 
 the law which Mr. Madison opposed, for the same reason that his 
 friend Fisher Ames did, because it was an excise, and as such was 
 specifically comprehended by the Constitution. Any loose expres- 
 sions in definition of the word "direct," so far as conflicting with 
 his well considered views in the Federalist, must be regarded as the 
 liberty which the advocate usually thinks himself entitled to take 
 with his subject. He gives, however, it appears to us, a definition 
 which covers the question before us. A tax upon one's whole income 
 is a tax upon the annual receipts from his whole property, and a.s 
 such falls within the same class as a tax upon that property, and is 
 a direct tax, in the meaning of the Constitution. And Mr. Hamil- 
 ton, in his report on the public credit, in referring to contracts with 
 citizens of a foreign country, said: "This principle, which seems 
 critically correct, would exempt as well the income as the capital of 
 the property. It protects the use, as effectually as the thing. What, 
 in fact, is property, but a fiction, without the beneficial use of it? 
 In many cases, indeed, the income or annuity i> the property itself.'' 
 3 Hamilton's Works, 34. 
 
 We think there is nothing in the Hylton case in conflict with the 
 foregoing. 
 
 What was decided in the Hylton case was, that a 
 
 tax on carriages was an excise, and, therefore, an indirect tax. The 
 contention of Mr. Madison in the House was only so far disturbed 
 by it, that the court classified it where he himself would have held 
 it constitutional, and he subsequently as President approved of a 
 similar act. 3 Stat. 40. The contention of Mr. Hamilton in the 
 Federalist was not disturbed by it in the least. In our judgment,
 
 212 LIMITATIONS OF THE TAXING POWER. 
 
 the construction given to the Constitution by the authors of the Fed- 
 eralist (the five numbers contributed by Chief Justice Jay related 
 to the danger from foreign force and influence, and to the treaty 
 making power) should not and cannot be disregarded. 
 
 The Constitution prohibits any direct tax, unless in proportion to 
 numbers as ascertained by the census; and, in the light of the cir- 
 cumstances to which we have referred, is it not an evasion of that 
 prohibition to hold that a general unapportioned tax, imposed upon 
 all property owners as a body for or in respect of their property, is 
 not direct, in the meaning of the Constitution, because confined to 
 the income therefrom? 
 
 Whatever the speculative views of political economists or revenue 
 reformers may be, can it properly be held that the Constitution, 
 taken in its plain and obvious sense, and with due regard to the 
 circumstances attending the formation of the government, authorizes 
 a general unapportioned tax on the product of the farm and the 
 rents of real estate, although imposed merely because of ownership 
 and with no possible means of escape from payment, as belonging to 
 a totally different class from that which includes the property from 
 whence the income proceeds? 
 
 There can be but one answer, unless the constitutional restric- 
 tion is to be treated as utterly illusory and futile, and the object 
 of its framers defeated. We find it impossible to hold that a fun- 
 damental requisition, deemed so important as to be enforced by 
 two provisions, one affirmative and one negative, can be refined 
 away by forced distinctions between that which gives value to 
 property, and the property itself. 
 
 Nor can we perceive any ground why the same reasoning does 
 not apply to capital in personalty held for the purpose of income or 
 ordinarily yielding income, and to the income therefrom. All 
 the real estate of the country, and all its invested personal prop- 
 erty, are open to the direct operation of the taxing power if an 
 apportionment be made according to the Constitution. The Con- 
 stitution does not say that no direct tax shall be laid by apportion- 
 ment on any other property than land; on the contrary, it forbids 
 all unapportioned direct taxes; and we know of no warrant for 
 excepting personal property from the exercise of the power, or any 
 reason why an apportioned direct tax cannot be laid and assessed, 
 as Mr. Gallatin said in his report when Secretary of the Treasury in 
 1812, "upon the same objects of taxation on which the direct taxes 
 are levied under the authority of the State are laid and assessed. " 
 
 Personal property of some kind is of general distribution; and
 
 POLLOCK V. FAKMEKS' LOAN AND TRUST CO. 213 
 
 so are incomes, though the taxable range thereof might be nar- 
 rowed through large exemptions. 
 
 The stress of the argument is thrown, however, on the assertion 
 that an income tax is not a property tax at all; that it is not 
 a real estate tax, or a crop tax, or a bond tax ; that it is an assess- 
 ment upon the taxpayer on account of his money-spending power 
 as shown by his revenue for the year preceding the assessment; 
 that rents received, crops harvested, interest collected, have lost all 
 connection with their origin, and although once not taxable have be- 
 come transmuted in their new form into taxable subject-matter; 
 in other words, that income is taxable irrespective of the source 
 from whence it is derived. 
 
 We have unanimously held in this case that, so far as this law 
 operates on the receipts from municipal bonds, it cannot be sustained, 
 because it is a tax on the power of the states, and on their instru- 
 mentalities to borrow money, and consequently repugnant to the 
 Constitution. But if, as contended, the interest when received 
 has become merely money in the recipient's pocket, and taxable as 
 such without reference to the source from which it came, the ques- 
 tion is immaterial whether it could have been originally taxed at 
 all or not. This was admitted by the Attorney-General with char- 
 acteristic candor; and it follows that, if the revenue derived from 
 municipal bonds cannot be taxed because the source cannot be, the 
 same rule applies to revenue from any other source not subject 
 to the tax; and the lack of power to levy any but an apportioned 
 tax on real and personal property equally exists as to the revenue 
 therefrom. 
 
 Admitting that this act taxes the income of property irrespective 
 of its source, still we cannot doubt that such a tax is necessarily a 
 direct tax in the meaning of the Constitution. 
 
 At the time the Constitution was framed and adopted, under 
 the systems of direct taxation of many of the States, taxes were 
 laid on incomes from professions, business, or employments, as 
 well as from "offices and places of profit''; but if it were the fact 
 that there had been no income tax law, such as this, it would not 
 be of controlling importance. A direct tax cannot be taken out 
 of the constitutional rule because the particular tax did not exist 
 at the time the rule was prescribed. 
 
 Being direct, and therefore to be laid by apportionment, is
 
 214 LIMITATIONS OF THE TAXING POWER. 
 
 there any real difficulty in doing so? Cannot Congress, if the neces- 
 sity exists of raising thirty, forty, or any other number of million 
 dollars for the support of the government, in addition to the reve- 
 nue from duties, imposts, and excises, apportion the quota of 
 each State upon the basis of the census, and thus advise it of the 
 payment which must be made, and proceed to assess that amount 
 on all real and personal property and the income of all persons 
 in the State, and to collect the same if the State does not in the 
 meantime assume and pay its quota and collect the amount accord- 
 ing to its own system and its own way? Cannot Congress do this, 
 as respects either or all these subjects of taxation, and deal with 
 each in such manner as might be deemed expedient, as indeed was 
 done in the act of July 14, 1798, c. 75, 1 Stat. 597 ? Inconveniences 
 might possibly attend the levy of an income tax, notwithstanding 
 the listing of receipts, when adjusted, furnishes its own valuation; 
 but that it is apportionable is hardly denied, although it is asserted 
 that it would operate so unequally as to be undesirable. 
 
 Our conclusions may, therefore, be summed up as follows: 
 
 First. We adhere to the opinion already announced that, taxes 
 on real estate being indisputably direct taxes, taxes on the rent or 
 income of real estate are equally direct taxes. 
 
 Second. We are of opinion that taxes on personal property 
 or on income of personal property, are likewise direct taxes. 
 
 Third. The tax imposed by sections twenty-seven to thirty-seven, 
 inclusive, of the act of 1894, so far as it falls on the income of 
 real estate and of personal property, being a direct tax within 
 the meaning of the Constitution, and, therefore, unconstitutional and 
 void because not apportioned according to representation, all those 
 sections, constituting one entire scheme of taxation, are necessarily 
 invalid. 
 
 V. UNIFORMITY THROUGHOUT THE UNITED STATES. 
 KNOWLTON V. MOORE. 
 
 Supreme Court of the United States. May, 1900. 
 178 United States 41. 
 
 Mr. Justice WHITE delivered the opinion of the court. 
 
 Demand having been made by the collector for the payment,
 
 KNOWLTOX V. MOORE. 215 
 
 accompanied with a threat to distrain in case of refusal, the tax 
 
 was paid under written protest In the receipt given 
 
 it was recited that the tax had been paid under protest to avoid 
 the use of compulsory process. A petition for refunding was sub- 
 sequently presented, by the executors, in which the grounds of 
 protest were reiterated. The Commissioner of Internal Revenue 
 having made an adverse ruling, the present suit was com- 
 menced to recover the amount paid. The facts as to the assessment 
 and collection of the taxes were averred, and the refusal of the 
 internal revenue commissioner to refund was alleged. The petition 
 for refunding was made a part of the pleadings. The right to re- 
 payment was based upon the averment that the sections of the 
 statute, under authority of which the amount had been assessed 
 and collected, were unconstitutional. The Circuit Court sustained 
 a demurrer, on the ground that no cause of action was alleged. 
 The claim was rejected, and the suit was dismissed with costs. 
 
 The questions which arise on this writ of error, to review the 
 judgment of the Circuit Court, are fourfold: First, that the taxes 
 should have been refunded because they were direct taxes, and not 
 .being apportioned were hence repugnant to article 1, section 8, of the 
 Constitution of the United States; second, if the taxes were not 
 direct, they were levied on rights created solely by State law, depend- 
 ing for their continued existence on the consent of the several 
 States, a volition which Congress has no power to control, and as to 
 which it could not, therefore, exercise its taxing authority; third, 
 if the taxes were not direct, and were not assessed upon objects or 
 rights which were beyond the reach of Congress, nevertheless the 
 taxes were void, because they were not uniform throughout the 
 United States, as required by article 1, section 9, of the Constitution 
 of the United States; fourth, because, although the taxes be held to 
 have been in all respects constitutional, nevertheless they were illegal, 
 since in their assessment the rate of the tax was determined by 
 the aggregate amount of the personal estate of the deceased, and 
 not by the sum of the legacies or distributive shares, or the right 
 to take the same, which were the objects upon which, by the law, 
 the taxes were placed. 
 
 Although it may be, in the abstract, an analysis of these ques- 
 tions, in logical sequence, would require a consideration of the 
 propositions in the order just stated, we shall not do so for the 
 following reasons: The inquiry whether the taxes are direct or 
 indirect must involve the prior determination of the objects or 
 rights upon which by law they are imposed and assessed, since
 
 21G LIMITATIONS OF THE TAXING POWER. 
 
 it becomes essential primarily to know what the law assesses and 
 taxes in order to completely learn the nature of the burden. So, 
 also, to solve the contention as to want of uniformity, it is requisite 
 to understand not only the objects or rights which are taxed, but 
 the method ordained by the statute for assessing and collecting. 
 This must be the case, since uniformity, in whatever aspect it be 
 considered, involves knowledge as to the operation of the taxing 
 law, an understanding of which cannot be arrived at without a 
 clear conception of what the law commands to be done. For these 
 reasons we shall first, in a general way, consider upon what rights 
 or objects death duties, as they are termed in England, are im- 
 posed. Having, from a review of the history of such taxes, reached 
 a conclusion on this subject, we shall decide whether Congress has 
 power to levy such taxes. This being settled, we shall analyze the 
 particular act under review, for the purpose of ascertaining the 
 precise form of tax for which it provides and the mode of assess- 
 ment which it directs. These questions being disoposed of, we 
 shall determine whether the taxes which the act imposes are void, 
 because not apportioned or for the want of uniformity. 
 
 It is conceded on all sides that the levy and collection of some 
 form of death duty is provided by the sections of the law in ques- 
 tion. Bearing this in mind, the exact form of the tax and the 
 method of its assessment need not be presently defined, since doing 
 so appropriately belongs to the more specific interpretation of 
 the statute to which we shall hereafter direct our attention. Taxes 
 of this general character are universally deemed to relate, not to 
 property eo nomine, but to its passage by will or by descent irt 
 cases of intestacy, as distinguished from taxes imposed on property, 
 real or personal as such, because of its ownership and possession. 
 In other words, the public contribution which death duties exact is 
 predicated on the passing of property as the result of death, as dis- 
 tinct from a tax on property disassociated from its transmission or 
 receipt by will, or as the result of intestacy 
 
 Having ascertained the nature of death duties, the first question 
 which arises is this: Can the Congress of the United States 
 levy a tax of that character? The proposition that it cannot rests 
 upon the assumption that, since the transmission of property by 
 death is exclusively subject to the regulating authority of the sev- 
 eral States, therefore the levy by Congress of a tax on inheritances 
 or legacies, in any form, is beyond the power of Congress, and 
 is an interference by the National Government with a matter which
 
 KNOWLTON V. MOORE. 21? 
 
 falls alone within the reach of state legislation. It is to be remarked 
 that this proposition denies to Congress the right to tax a subject- 
 matter which was conceded to be within the scope of its power very 
 early in the history of the government It is, more- 
 over, worthy of remark that similar taxes have at other period- 
 and for a considerable time been enforced; and, although their 
 constitutionality was assailed on other grounds held unsound by 
 this Court, the question of want of authority of Congress to levy 
 a tax on inheritances and legacies was never urged against the 
 acts in question. Whilst these considerations are of great weight, 
 let us for the moment put them aside to consider the reasoning 
 upon which the proposition denying the power of Congress to im- 
 pose death duties must rest. 
 
 Confusion of thought may arise unless it be always remembered 
 that, fundamentally considered, it is the power to transmit or th>; 
 transmission or receipt of property by death which is the subject 
 levied upon by all death duties. The qualification of such taxes as 
 privilege taxes, or describing them as levied on a privilege, may 
 also produce misconception, unless the import of these words be 
 accurately understood. They have been used where the power of a 
 state government to levy a particular form of inheritance or 
 legacy tax has in some instances been assailed because of a constitu- 
 tional limitation on the taxing power. Under these circumstances, 
 the question has arisen whether, because of the power of the State 
 to regulate the transmission of property by death, there did not 
 therefore exist a less trammeled right to tax inheritances and 
 legacies than obtained as to other subject-matters of taxation, and, 
 upon the affirmative view being adopted, a tax upon inheritances 
 or legacies for this reason has been spoken of as privilege taxation, 
 or a tax on privileges. The conception, then, as to the privilege, 
 whilst conceding fully that the occasion of the transmission or re- 
 ceipt of property by death is a usual subject of the taxing power, 
 yet maintains that a wider discretion or privilege is vested in the 
 States, because of the right to regulate. Courts which maintain this 
 view have therefore treated death duties as disenthralled from lim- 
 itations which would otherwise apply, if the privilege of regulation 
 did not exist. 
 
 All courts and all governments, however, con- 
 ceive that the transmission of property occasioned by death, although 
 differing from the tax on property as such, is, nevertheless, a usual 
 subject of taxation. Of course, in considering the power of Con-
 
 218 LIMITATIONS OF THE TAXING POWER, 
 
 gress to impose death duties, we eliminate all thought of a greater 
 privilege to do so than exists as to any other form of taxation, 
 as the right to regulate successions is vested in the States and not 
 in Congress. 
 
 It is not denied that, subject to a compliance with the limitations 
 in the Constitution, the taxing power of Congress extends to all usual 
 subjects of taxation. Indeed, as said in the License Tax Cases, 5 
 Wall. 462, 471, after referring to the limitations expressed in the 
 Constitution, "Thus limited, and thus only, it (the taxing power 
 of Congress) reaches every subject, and may be exercised at dis- 
 cretion." The limitation which would exclude from Congress the 
 right to tax inheritances and legacies is made to depend upon the 
 contention that as the power to regulate successions is lodged solely 
 in the several States, therefore Congress is without authority to 
 tax the transmission or receipt of property by death. ... 
 
 But the fallacy which underlies the proposition contended for is 
 the assumption that the tax on the transmission or receipt of prop- 
 erty occasioned by death is imposed on the exclusive power of the 
 State to regulate the devolution of property upon death. The thing 
 forming the universal subject of taxation upon which inheritance 
 and legacy taxes rest is the transmission or receipt, and not the right 
 existing to regulate. In legal effect, then, the proposition upon 
 which the argument rests is that wherever a right is subject to ex- 
 clusive regulation, by either the government of the United States on 
 the one hand or the several States on the other, the exercise of such 
 rights as regulated can alone be taxed by the government having the 
 mission to regulate. But when it is accurately stated, the proposi- 
 tion denies the authority of the States to tax objects which are con- 
 fessedly within the reach of their taxing power, and also excludes the 
 National Government from almost every subject of direct and many 
 acknowledged objects of indirect taxation. Thus imports are ex- 
 clusively within the taxing power of Congress. Can it be said that 
 the property when imported and commingled with the goods of the 
 State cannot be taxed, because it had been at some prior time the 
 subject of exclusive regulation by Congress. Again, interstate com- 
 merce is often within the exclusive regulating power of Congress. 
 Can it be asserted that the property of all persons or corporations 
 engaged in such commerce is not the subject of taxation by the sev- 
 eral States, because Congress may regulate interstate commerce? 
 Conveyances, mortgages, leases, pledges, and, indeed, all property 
 and the contracts which arise from its ownership, are subject more 
 or less to state regulation, exclusive in its nature. If the proposition
 
 KNOWLTON" V. MOORE. 21'J 
 
 here contended for be sound, such property or dealings in relation 
 thereto cannot be taxed by Congress, even in the form of a stamp 
 duty. It cannot be doubted that the argument when reduced to its 
 essence demonstrates its own unsoundness, since it leads to the 
 necessary conclusion that both the National and State governments 
 are divested of those powers of taxation which from the foundation 
 of the government admittedly have belonged to them. Certainly, a 
 tax placed upon an inheritance or legacy diminishes, to the extent of 
 the tax, the value of the right to inherit or receive, but this is .1 
 burden cast upon the recipient and not upon the power of the State 
 
 to regulate 
 
 We are then brought to a consideration of the particular form of 
 death duty, which is manifested by the statute under consideration. 
 
 It is at the outset obvious that the exact meaning of the statute 
 is not free from perplexity, as there are clauses in it, when looked 
 at apart from their context, which may give rise to conflicting 
 views. It is plain, however, that the statute must mean one of three 
 things : 
 
 1. The tax which it imposes is on the passing of the whole amount 
 of the personal estate, with a progressive rate depending upon the 
 sum of the whole personal estate; or, 
 
 2. The tax which it levies is placed on the passing of legacies or 
 distributive shares of personal property at a progressive rate, the 
 amount of such rate being determined, not by the separate sum of 
 each legacy or distributive share, but by the volume of the whole 
 personal estate. This is the mode in which the tax was computed 
 by the assessor, and which was sustained by the court below; or, 
 
 3. The tax is on the passing of legacies or distributive shares of 
 personalty, with a progressive rate on each, separately determined 
 by the sum of each of such legacies or distributive shares. 
 
 The tax being then on the legacies and distributive shares, the 
 rate primarily being determined by the relation of the legatees or 
 distributees to the estate, does the law command that the progressive 
 rate of tax which it imposes on the legacies or distributive shares 
 shall be measured, not separately by the amount of each particular 
 legacy or distributive share, but by the sum of the whole personal 
 estate? This, as we have said, is the interpretation of the act which 
 was adopted by the assessor in levying the taxes under review, and 
 which was sustained by the court below.
 
 220 LIMITATIONS OF THE TAXING POWER. 
 
 Granting, however, that there is doubt as to the construction, in 
 view of the consequences which result from adopting the theory that 
 the act taxes each separate legacy by a rate determined, not by the 
 amount of the legacy, but by the amount of the whole personal 
 estate left by the deceased, we should be compelled to solve the doubt 
 against the interpretation relied on. The principle on which such 
 construction rests was thus defended in argument. The tax is on 
 each separate legacy or distributive share, but the rate is measured 
 by the whole estate. In other words, the construction proceeds upon 
 the assumption that Congress intended to tax the separate legacies, 
 not by their own value, but by that of a wholly distinct and separate 
 thing. But this is equivalent to saying that the principle underly- 
 ing the asserted interpretation is that the house of A, which is only 
 worth one thousand dollars, may be taxed, but that the rate of the 
 tax is to be determined by attributing to A's house the value of B'? 
 house, which may be worth a hundred-fold the amount. The gross 
 inequalities which must inevitably result from the admission of this 
 theory are readily illustrated. Thus, a person dying and leaving an 
 estate of $10,500, bequeaths to a hospital ten thousand dollars. The 
 rate of tax would be five per cent, and the amount of tax five hun- 
 dred dollars. Another person dies at the same time, leaves an 
 estate of one million dollars, and bequeaths ten thousand dollars to 
 the same institution. The rate of tax would be \2 l / 2 per cent, and 
 the amount- of the tax $1250. It would thus come to pass that the 
 same person, occupying the same relation, and taking in the same 
 character, two equal sums from two different persons, would pay in 
 the one case more than twice the tax that he would in the other. 
 In the arguments of counsel tables are found which show how in- 
 evitable and profound are the inequalities which the construction 
 must produce. Clear as is the demonstration which they make, they 
 only serve to multiply instances afforded by the one example which 
 we have just given. 
 
 We are, therefore, bound to give heed to the rule, that where a 
 particular construction of a statute will occasion great inconveni- 
 ence or produce inequality and injustice, that view is to be avoided 
 if another and more reasonable interpretation is present in the stat- 
 ute. Bate Refrigerating Co. v. Sulzeberger, 157 U. S. 1, 37; Wil- 
 son v. Rousseau, 4 How. 646, 680 ; Bloomer v. McQuewan, 14 How. 
 539, 553; Blake v. National Banks, 23 Wall. 307, 320; United 
 States v. Kirby, 7 Wall. 482, 486 
 
 It may be doubted by some, aside from express constitutional re- 
 strictions, whether the taxation by Congress of the property of one
 
 KNOWLTOX V. MOORE. 221 
 
 person, accompanied with an arbitrary provision that the rate of tax 
 shall be fixed with reference to the sum of the property of another, 
 thus bringing about the profound inequality which we have noticed, 
 would not transcend the limitations arising from those fundamental 
 conceptions of free government which underlie all constitutional 
 systems. On this question, however, in any of its aspects, we do not 
 even intimate an opinion, as no occasion for doing so exists, since, as 
 we understand the law, we are clearly of opinion that it does not 
 sustain the construction which was placed on it by the court below. 
 
 The precise meaning of the law being thus determined, the ques- 
 tion whether the tax which it imposes is direct, and hence subject to 
 the requirement of apportionment, arises for consideration. That 
 death duties, generally, have been from the beginning in all countries 
 considered as different from taxes levied on property, real or per- 
 sonal, directly on account of the ownership and possession thereof, 
 is demonstrated by the review which we have previously made. It- 
 has also been established by what we have heretofore said, that such 
 taxes, almost from the beginning of our national life, have been 
 treated as duties, and not as direct taxes. Of course, they concern 
 the passing of property by death, for if there was no property to 
 transmit, there would be nothing upon which the tax levied on the 
 occasion of death could be computed. This legislative and adminis- 
 trative view of such taxes has been directly upheld by this court. In 
 Scholey v. Rew, 23 Wall. 331, 349, the question pre- 
 sented was the constitutionality of the provisions of the act of 1864, 
 imposing a succession duty as to real estate. The assertion was that 
 the duty was repugnant to the Constitution, because it was a direct 
 tax and had not been apportioned. The tax was decided to be con- 
 stitutional. The court said (p. 346) : 
 
 "But it is clear that the tax or duty levied by the act under con- 
 sideration is not a direct tax within the meaning of either of these 
 provisions. Instead of that it is plainly an excise tax or duty, au- 
 thorized by section eight of article one, which vests the power in 
 Congress to lay and collect taxes, duties, imposts, and excises to pay 
 the debts and provide for the common defence and general welfare." 
 
 Concluding, then, that the tax under consideration is not direct 
 within the meaning of the Constitution, but, on the contrary, is a 
 duty or excise, we are brought to consider the question of uniformity. 
 
 The contention is that the statute exempts legacies and distrib- 
 utive shares in personal property below ten thousand dollars, because
 
 222 LIMITATIONS OF THE TAXING POWER. 
 
 it classifies the rate of tax according to the relationship or absence 
 of relationship of the taker to the deceased, and provides for a rate 
 progressing by the amount of the legacy or share, therefore the tax 
 is repugnant to that portion of the first clause of section 8 article 1 
 of the Constitution, which provides "the duties, imposts and excises 
 shall be uniform throughout the United States." 
 
 The argument to the contrary, whilst conceding that the tax de- 
 vised by the statute dees not fulfill the requirement of equality 
 and uniformity, as those words are construed when found in state 
 constitutions, asserts that it does not thereby follow that the taxes 
 in question are repugnant to the Constitution of the United States, 
 since the provisions in the Constitution, that "duties, imposts and ex- 
 cises shall be uniform throughout the United States," it is insisted 
 has a different meaning from the expression equal and uniform, 
 found in state constitutions. In order to decide these respective con- 
 tentions it becomes at the outset necessary to accurately define the 
 theories upon which they rest. 
 
 On the one side, the proposition is that the command that duties, 
 imposts and excises shall be uniform throughout the United States 
 relates to the inherent and intrinsic character of the tax; that it 
 contemplates the operation of the tax upon the property of the indi- 
 vidual taxpayer, and exacts that when an impost, duty or excise is 
 levied, it shall operate precisely in the same manner upon all indi- 
 viduals; that is to say, the proposition is that "uniform throughout 
 the United States" commands that excises, duties and imposts, when 
 levied, shall be equal and uniform in their operation upon persons 
 and property in the sense of the meaning of the words equal and 
 uniform, as now found in the constitution of most of the States of 
 the Union. The contrary construction is this: That the words 
 "uniform throughout the United States" do not relate to the inherent 
 character of the tax as respects its operation on individuals, but sim- 
 ply requires that whatever plan or method Congress adopts for laying 
 the tax in question, the same plan and the same method must be 
 made operative throughout the United States that is to say, that 
 wherever a subject is taxed anywhere, the same must be taxed every- 
 where throughout the United States, and at the same rate. The 
 two contentions then may be summarized by saying that the one 
 asserts that the Constitution prohibits the levy of any duty, impost 
 or excise which is not intrinsically equal and uniform in its opera- 
 tion upon individuals, and the other that the power of Congress in 
 levying the taxes in question is by the terms of the Constitution re-
 
 KNOWLTON V. MOORE. 223 
 
 strained only by the requirement that such taxes be geographically 
 uniform. 
 
 Considering the text, it is apparent that if the word "uniform" 
 means "equal and uniform" in the sense now asserted by the op- 
 ponents of the tax, the words "throughout the United States" are 
 deprived of all real significance, and sustaining the contention must 
 hence lead to a disregard of the elementary canon of construction 
 which requires that effect be given to each word of the Constitution. 
 
 Taking a wider view, it is to be remembered that the power to 
 tax contained in section 8 of article 1 is to lay and collect "taxes, 
 duties, imposts and excises. . . . . . But all duties, imposts 
 and excises shall be uniform throughout the United States." Thus, 
 the qualification of uniformity is imposed, not upon all taxes which 
 the Constitution authorizes, but only on duties, imposts and excises. 
 The conclusion that inherent equality and uniformity is contem- 
 plated involves, therefore, the proposition that the rule of intrinsic 
 uniformity is applied by the Constitution to taxation by means of 
 duties, imposts and excises, and it is not applicable to any other 
 form of taxes. It cannot be doubted that in levying direct taxes, 
 after apportioning the amount among the several States, as provided 
 in clause 4 of section 9 of article 1 of the Constitution, Congress has 
 the power to choose the objects of direct taxation, and to levy the 
 quota as apportioned directly upon the objects so selected. Even 
 then, if the view of inherent uniformity be the true one, none of the 
 taxes so levied would be subjected to such rule, as the requirement 
 only relates to duties, imposts and excises. 
 
 But the classes of taxes termed duties, imposts and excises, to 
 which the rule of uniformity applies, are those to which the princi- 
 ple of equality and uniformity in the sense claimed, is in the nature 
 of things the least applicable and least susceptible of being enforced. 
 Excises usually look to a particular subject, and levy burdens with 
 reference to the act of manufacturing them, selling them, etc. They 
 are or may be as varied in form as are the acts or dealings with 
 which the taxes are concerned. Impost duties take every conceivable 
 form, as may by the legislative authority be deemed best for the gen- 
 eral welfare. They have been at all times often specific. They have 
 sometimes been discriminatory, particularly when deemed necessary 
 by reason of the tariff legislation of other countries. The claim of 
 intrinsic uniformity, therefore, imputes to the framers a restriction 
 as to certain forms of taxes, where the restraint was least appropri- 
 ate and the omission where it was most needed. This discord which
 
 224 LIMITATIONS OF THE TAXING POWER. 
 
 the construction, if well founded, would create, suggests at once the 
 unsoundness of the proposition, and gives rise to the inference that 
 the contrary view by which the unity of the provisions of the Consti- 
 tution is maintained, must be the correct one. In fact, it is ap- 
 parent that if imposts, duties and excises are controlled by the rule 
 of intrinsic uniformity, the methods usually employed at the time 
 of the adoption of the Constitution in all countries in the levy of 
 such taxes would have to be abandoned in this country, and, there- 
 fore, whilst nominally having the authority to impose taxes of this 
 character, the power to do so would virtually be denied to Congress. 
 Now, that the requirement that direct taxes should be apportioned 
 among the several States, contemplated the protection of the States, 
 to prevent their being called upon to contribute more than was 
 deemed their due share of the burden, is clear. Giving to the term 
 uniformity as applied to duties, imposts and excises a geographical 
 significance, likewise causes that provision to look to the forbidding 
 of discrimination as between the States, by the levying of duties, im- 
 posts or excises upon a particular subject in one State and a differ- 
 ent duty, impost or excise on the same subject in another; and, 
 therefoie, as far as may be, is a restriction in the same direction and 
 in harmony with the requirement of apportionment of direct taxes. 
 And the conclusion that the possible discrimination against one or 
 more States was the only thing intended to be provided for by the 
 rule which uniformity imposed upon the power to levy duties, im- 
 posts and excises, is greatly strengthened by considering the state of 
 the law in the mother country and in the colonies, and the practice 
 of taxation which obtained at or about the time of the adoption of 
 the Constitution. 
 
 In taxing laws of the original States prior to the Convention of 
 1787, exemptions were allowed from a consideration of what was 
 deemed best for the general welfare, and taxes were frequently laid 
 from a consideration of the presumed ability of the owner to pay 
 the tax. Discriminations and exemptions were also contained in 
 various State taxing laws, which illustrate the discretion vested in 
 the legislative bodies of the States in the latter part of the eighteenth 
 century 
 
 It cannot be, therefore, supposed that the framers of the Constitu- 
 tion, in using the words "uniform throughout the United States," 
 contemplated to confer the power to levy duties, imposts and ex- 
 cises, and yet to accompany this grant of authority with a restric- 
 tion which had never found expression as to such taxes at that time
 
 KNOWLTON V. MOORE. 225 
 
 anywhere, and which was contrary to the practice which had uni- 
 formly obtained both in the mother country and in the colonies, 
 and in the States prior to the adoption of the Constitution. But, 
 one of the most satisfactory answers to the argument that the uni- 
 formity required by the Constitution is the same as the equal and 
 uniform clause which has since been embodied in so many of the 
 state constitutions, results from a review of the practice under the 
 Constitution from the beginning. From the very first Congress 
 down to the present date, in laying duties, imposts and excises, the 
 rule of inherent uniformity, or, in other , words, intrinsically equal 
 and uniform taxes, has been disregarded; and the principle of geo- 
 graphical uniformity consistently enforced. Take, for a general ex- 
 ample, specific import duties, by which particular specific rates are 
 imposed on enumerated articles, without reference to their value. It 
 is manifest that all such duties are void, if intrinsic equality and 
 uniformity be the rule, and yet in all the great controversies which 
 have arisen over the policy of impost duties generally, and partic- 
 ularly as to the economic wisdom of specific duties, never has it been 
 contended that the power to impose them did not exist because of 
 the uniformity clause of the Constitution. So, also, mention may be 
 made of the common form of the excises on distilled spirits with the 
 tax per gallon without reference to the value thereof. 
 
 Indeed, tariff duties have not only varied with different articles, 
 b\it have varied with the different valuations of the same article. . . 
 
 Nor can it be said that these illustrations relate to legislation en- 
 acted long after the adoption of the Constitution, when by lapse of 
 time an erroneous conception as to the meaning of the Constitution 
 had arisen, for the examples to which we have just referred are but 
 types of many forms of taxation by way of duties, imposts and ex- 
 cises which were enacted without question from the very beginning, 
 and have continued in an unbroken line to the present time, sanc- 
 tioned by the founders of our institutions and approved in practical 
 execution by all the illustrious men who have directed the public 
 destinies of the nation. Excise taxes were largely used during the 
 administration of President Washington, and again during and after 
 the war of 1812. It may properly be said of these excises that none 
 of them were uniform according to the principles now contended for, 
 yet no constitutional question in this regard was ever raised about 
 them 
 
 Thus, it came to pass that although the provisions as to preference 
 15
 
 22G LIMITATIONS OF THE TAXING POWER. 
 
 between ports and that regarding uniformity of duties, imposts and 
 excises were one in purpose, one in their adoption, they became sep- 
 arated only in arranging the Constitution for the purpose of style. 
 The first now stands in the Constitution as a part of the sixth clause 
 of section 7 of article 1, and the other is a part of the first clause of 
 section 8 of article 1. By the result then of an analysis of the his- 
 tory of the adoption of the Constitution it becomes plain that the 
 words "uniform throughout the United States" do not signify an 
 intrinsic but simply a geographical uniformity. And it also results 
 that the assertion to which we at the outset referred, that the de- 
 cision in the Head Money cases, holding that the word uniform must 
 be interpreted in a geographical sense, was not authoritative, because 
 the case in reality solely involved the clause of the Constitution for- 
 bidding preferences between ports, is shown to be unsound, since the 
 preference clause of the Constitution and the uniformity clause were, 
 in effect, in framing the Constitution, treated, as respected their 
 operation, as one and the same thing, and embodied the same con- 
 ception. 
 
 Having disposed of the question of uniformity, we are next 
 brought to consider certain contentions which relate to that subject. 
 It is argued that even although it be conceded that the uniformity 
 required by the Constitution is only geographical, the particular law 
 in question does not fulfill the requirements of even geographical 
 uniformity, since it does not apply to the District of Columbia. We 
 think this contention is without merit. 
 
 It is yet further asserted that the tax does not fulfill the require- 
 ments of geographical uniformity, for the following reasons : As 
 the primary rate of taxation depends upon the degree of relation- 
 ship or want of relationship to a deceased person, it is argued that 
 it cannot operate with geographical uniformity, inasmuch as testa- 
 mentary and intestacy laws may differ in every State. It is certain 
 that the same degree of relationship or want of relationship to the 
 deceased, wherever existing, is levied on at the same rate throughout 
 the United States. The tax is hence uniform throughout the United 
 States, despite the fact that different conditions among the States 
 may obtain as to the objects upon which the tax is levied. The 
 proposition in substance assumes that the objects taxed by duties, im- 
 posts and excises must be found in uniform quantities and conditions 
 in the respective States, otherwise the tax levied on them will not be 
 uniform throughout the United States. But what the Constitution
 
 KXOWLTOX V. MOORE. 22 1 
 
 commands is the imposition of a tax by the rule of geographical uni- 
 formity, not that in order to levy such a tax objects must be selected 
 which exist uniformly in the several States. Indeed, the contention 
 was substantially disposed of in the License Tax Cases, 5 Wall. 472. 
 
 Lastly, it is urged that the progressive rate feature of the statute 
 is so repugnant to fundamental principles of equality and justice 
 that the law should be held to be void, even although it transgresses 
 no express limitation in the Constitution. Without intimating any 
 opinion as to the existence of a right in the courts to exercise the 
 power which is thus invoked, it is apparent that the argument as to 
 the enormity of the tax is without merit. It was disposed of in 
 Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 293. 
 
 The review which we have made exhibits the fact that taxes im- 
 posed with reference to the ability of the person upon whom the 
 burden is placed to bear the same have been levied from the founda- 
 tion of the government. So, also, some authoritative thinkers, and a 
 number of economic writers, contend that a progressive tax is more 
 just and equal than a proportional one. In the absence of constitu- 
 tional limitation, the question whether it is or is not is legislative 
 and not judicial. The grave consequences which it is asserted must 
 arise in the future if the right to levy a progressive tax be recognized 
 involves in its ultimate aspect the mere assertion that free and rep- 
 resentative government is a failure, and that the grossest abuses of 
 power are foreshadowed unless the courts usurp a purely legislative 
 function. If a case should ever arise, where an arbitrary and confis- 
 catory exaction is imposed bearing the guise of a progressive or any 
 other form of tax, it will be time enough to consider whether the 
 judicial power can afford a remedy by applying inherent and funda- 
 mental principles for the protection of the individual, even though 
 there be no express authority in the Constitution to do so. That the 
 law which we have construed affords no ground for the contention 
 that the tax imposed is arbitrary and confiscatory, is obvious. 
 
 It follows from the foregoing opinion that the court below erred 
 in denying all relief, and that it should have held the plaintiff en- 
 titled to recover so much of the tax as resulted from taxing legacies 
 not exceeding ten thousand dollars, and from increasing the tax rate 
 with reference to the whole amount of the personal estate of the 
 deceased from which the legacies or distributive shares were derived. 
 For these reasons 
 
 The judgment below must be reversed and the case be remanded
 
 228 LIMITATIONS OF THE TAXING POWER. 
 
 with instructions that further proceedings be had according to law 
 and in conformity with this opinion, and it is so ordered. 
 
 Mr. Justice BREWER dissented from so much of the opinion as 
 holds that a progressive rate of tax can be validly imposed. In other 
 respects he concurred. 
 
 Mr. Justice PECKHAM took no part in the decision. 
 
 Mr. Justice HARLAN, with whom concurred Mr. Justice McKenna, 
 dissenting. 
 
 While I concur in the construction placed by the court upon the 
 clause of the Constitution declaring that all duties, imposts and ex- 
 cises shall be "uniform throughout the United States," I dissent 
 from that part of the opinion construing the twenty-ninth and thir- 
 tieth sections of the Revenue Act. In my judgment, the question 
 whether the tax presented by Congress shall or shall not be imposed 
 is to be determined with reference to the whole amount of the per- 
 sonal property out of which legacies and distributive shares arise. 
 If the value of the whole personal property held in charge or trust 
 by an administrator, executor or trustee exceeds ten thousand dol- 
 lars, then every part of it constituting a legacy or distributive 
 share, except the share of a husband or wife, is taxed at the pro- 
 gressive rate stated in the act of Congress. I do not think the act 
 can be otherwise interpreted without defeating the intent of Con- 
 gress. 
 
 Construed as I have indicated, the act is not liable to any consti- 
 tutional objection. 
 
 DOOLEY V. UNITED STATES. 
 
 Supreme Court of the United States. October, 1901. 
 183 United States 151. 
 
 This was an action begun in the Circuit Court as a Court of 
 Claims by the firm of Dooley, Smith & Co., to recover duties exacted 
 of them and paid under protest to the collector of the port of San 
 Juan, Porto Rico, upon merchandise imported into that port from 
 the port of New York after May 1, 1900, and since the Foraker act. 
 The act requires all merchandise "coming into Porto Rico from the 
 United States" to be "entered at the several ports of entry upon pay- 
 ment of fifteen per centum of the duties which are required to be
 
 DOOLEY V. UNITED STATES. 229 
 
 levied, collected and paid upon like articles of merchandise imported 
 from foreign countries.'' 
 
 A demurrer was interposed by the District Attorney upon the 
 ground that the court had no jurisdiction of the subject of the 
 action, and also that the complaint did not state facts sufficient to 
 constitute a cause of action. The demurrer to the complaint for in- 
 sufficiency was sustained, and the petition dismissed. 
 
 Mr. Justice BROWN, after stating the case, delivered the opinion 
 of the court. 
 
 This case raises the question of the constitutionality of the For- 
 aker act, so far as it fixes the duties to be paid upon merchandise 
 imported into Porto Rico from the port of New York. 
 
 By section four, "the duties and taxes collected in 
 
 Porto Rico in pursuance of this act, less the cost of collecting the 
 same, and the gross amount of all collections and taxes in the United 
 States upon articles of merchandise coming from Porto Rico, shall 
 not be covered into the general fund of the Treasury, but shall be 
 held as a separate fund, and shall be placed at the disposal of the 
 President to be used for the government and benefit of Porto Rico, 
 until the government of Porto Rico, herein provided for, shall have 
 been organized, when all moneys theretofore collected under the pro- 
 visions hereof, then unexpended, shall be transferred to the local 
 treasury of Porto Rico." 
 
 Now, there can be no doubt whatever that, if the legislative as- 
 sembly of Porto Rico should, with the consent of Congress, lay a tax 
 upon goods arriving from ports of the United States, such tax, if 
 legally imposed, would be a duty upon imports to Porto Rico, and 
 not upon exports from the United States; and we think the same 
 result must follow, if the duty be laid by Congress in the interest 
 and for the benefit of Porto Rico. The truth is, that, in imposing 
 the duty as a temporary expedient, with a proviso that it may be 
 abolished by the legislative assembly of Porto Rico, at its will, Con- 
 gress thereby shows that it is undertaking to legislate for the island 
 for the time being and only until the local government is put into 
 operation. The mere fact that the duty passes through the hands of 
 the revenue officers of the United States is immaterial, in view of 
 the requirement that it shall not be covered into the general fund 
 of the Treasury, but be held as a separate fund for the government 
 and benefit of Porto Rico. 
 
 These duties were properly collected, and the action of the circuit
 
 230 LIMITATIONS OF THE TAXING POWEK. 
 
 court in sustaining the demurrer to the complaint was correct, and 
 it is therefore 
 
 Affirmed. 
 
 In Downes v. Bidwell, 182 U. S. 245, it was held that the uniformity clause 
 in the United States constitution did not affect that part of the territory of the 
 United Sta-tes which had not been formally incorporated into the United 
 States and thus made subject to the provisions of the constitution by act of 
 Congress.
 
 CHAPTER IV. 
 THE PURPOSES FOR WHICH TAXES MAY BE LAID. 
 
 LOAN ASSOCIATION Y. TOPEKA. 
 
 Supreme Court of the United States. October, 1874. 
 20 Wallace, 655. 
 
 The Citizens' Saving and Loan Association of Cleveland brought 
 their action in the court below, against the city of Topeka, on 
 coupons for interest attached to bonds of 'the city of Topeka. 
 
 The bonds on their face purported to be payable to the King 
 Wrought-Iron Bridge Manufacturing and Iron-Works Company, of 
 Topeka, to aid and encourage that company in establishing and 
 operating bridge shops in said city of Topeka, under and in pur- 
 suance of section twenty-six of an act of the legislature of the State 
 of Kansas, entitled "An act to incorporate cities of the second class," 
 approved February 29th, 1872 ; and also of another "Act to author- 
 ize cities and counties to issue bonds for the purpose of building 
 bridges, aiding railroads, water-power, or other works of internal im- 
 provement/' approved March 2d, 1872. 
 
 The citv issued one hundred of these bonds for $1,000 each, as a 
 donation (and so it was stated in the declaration), to encourage that 
 company in its design of establishing a manufactory of iron bridges 
 in that city. 
 
 The declaration also alleged that the interest coupons first due were 
 paid out of a fund raised by taxation for that purpose, and that 
 after this payment the plaintiff became the purchaser of the bonds 
 and coupons on which suit was brought, for value. 
 
 A demurrer was interposed by the city of Topeka to this declara- 
 tion. 
 
 The single question, . . . ."; . for consideration raised by 
 the demurrer was the authority of the legislature of the State of 
 Kansas to enact this statute. 
 
 The court below denied the authority, placing the denial on two 
 grounds : 
 
 2nd. That the act authorized the towns and other municipalities 
 
 231
 
 232 PUEPOSES FOK WHICH TAXES LAID. 
 
 to which it applied, by issuing bonds or lending their credit, to take 
 the property of the citizen under the guise of taxation to pay these 
 bonds, and use it in the aid of the enterprise of others which were 
 not of a public character; that this was a perversion of the right of 
 taxation, which could only be exercised for a public use, to the aid 
 of individual interests and personal purposes of profit and gain. 
 
 The court below, accordingly, sustaining the demurrer, gave judg- 
 ment in favor of the defendant, the city of Topeka; and to its judg- 
 ment this writ of error was taken. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 ~Two grounds are taken in the opinion of the circuit judge and in 
 the argument of the counsel for defendant, on which it is insisted 
 that the section of the statute of February 29th, 1872, on which the 
 main reliance is placed to issue the bonds, is unconstitutional. 
 
 ..... We find ample reason to sustain the demurrer on 
 the second ground on which it is argued by counsel and sustained 
 by the Circuit Court. 
 
 That proposition is that the act authorizes the towns and other 
 municipalities to which it applies, by issuing bonds or loaning their 
 credit, to take the property of the citizen under the guise of taxa- 
 tion to pay these bonds, and use it in the aid of the enterprises of 
 others which are not of a public character, thus perverting the right 
 of taxation, which can only be exercised for a public use, to the aid 
 of individual interests and personal purposes of profit and gain. 
 
 The proposition as thus broadly stated is not new, nor is the ques- 
 tion which it raises difficult of solution. 
 
 If these municipal corporations, which are in fact subdivisions of 
 'the State, and which for many reasons are vested with quasi-legis- 
 lative powers, have a fund or other property out of which they can 
 pay the debts which they contract, without resort to taxation, it may 
 be within the power of the legislature of the State to authorize them 
 to use it in aid of projects strictly private or personal, but which 
 would in a secondary manner contribute to the public good ; or where 
 there is property or money vested in a corporation of the kind for a 
 particular use, as public worship or charity, the legislature may pass 
 laws authorizing them to- make contracts in reference to this prop- 
 erty, and incur debts payable from that source. 
 
 But such instances are few and exceptional, and the proposition is 
 a very broad one, that debts contracted by municipal corporations 
 must be paid, if at all, out of taxes which they may lawfully levy, 
 and that all contracts creating debts to be paid in future, not limited
 
 LOAN ASSOCIATION V. TOPEKA. 233 
 
 to payment from some other source, imply an obligation to pay by 
 taxation. 
 
 It follows that in this class of cases the right to contract must be 
 limited by the right to tax, and if in the given case no tax can be 
 lawfully levied to pay the debt, the contract itself is void for want 
 of authority to make it. 
 
 If this were not so, these corporations could make valid promises, 
 which they have no means of fulfilling, and on which even the legis- 
 lature that created them can confer no such power. The validity of 
 a contract which can only be fulfilled by a resort to taxation, de- 
 pends on the power to levy a tax for the purpose. (Sharpless v. 
 Mayor of Philadelphia, 21 Pa. St. 147, 167; Hanson v. Vernon, 2? 
 Iowa, 28; Allen v. Inhabitants of Jay, 60 Me. 127; Lowell v. Bos- 
 ton, 111 Mass. 454; Whiting v. Fond du Lac, 25 Wis. 188.) 
 
 It is therefore to be inferred, that when the legislature of the 
 State authorizes a city or county to contract a debt by bond, it in- 
 tends to authorize it to levy such taxes as are necessary to pay the 
 debt, unless there is in the act itself, or in some general statute, 
 a limitation upon the power of taxation which repels such an in- 
 ference. 
 
 With these remarks and with the reference to the authorities 
 which support them, we assume that unless the legislature of Kansas 
 had the right to authorize the counties and towns in that State to 
 levy taxes to be used in aid of manufacturing enterprises, conducted 
 by individuals, or private corporations, for purposes of gain, the law 
 is void, and the bonds issued under it are also void. We proceed to 
 the inquiry whether such a power exists in the legislature of the 
 State of Kansas. 
 
 We have already said the question is not new. The subject of the 
 aid voted to railroads by counties and towns has been brought to the 
 attention of the courts of almost every State in the Union. It has 
 been thoroughly discussed and is still the subject of discussion in 
 those courts. It is quite true that a preponderance of authority is 
 to be found in favor of the proposition that the legislatures of the 
 States, unless restricted by some special provisions of their constitu- 
 tions, may confer upon these municipal bodies the right to take stock 
 in corporations created to build railroads, and to lend their credit to 
 such corporations. Also to levy the necessary taxes on the inhabi- 
 tants, and on property within their limits subject to general tax- 
 ation, to enable them to pay the debts thus incurred. But very few 
 of these courts have decided this without a division among the judges 
 of which they were composed, while others have decided against the
 
 234 PURPOSES FOR WHICH TAXES LAID. 
 
 existence of the power altogether. (The State v. Wapello County, 9 
 Iowa, 308; Hanson v. Vernon, 27 Id. 28; Sharpless v. Mayor, 21 
 Pa. St. 147; Whiting v. Fond du Lac, 25 Wis. 188.) 
 
 In all these cases, however, the decision has turned upon the ques- 
 tion whether the taxation by which this aid was afforded to the 
 building of railroads was for a public purpose. Those who came to 
 the conclusion that it was, held the laws for that purpose valid. 
 Those who could not reach that conclusion held them void. In all 
 the controversy this has been the turning-point of the judgments of 
 the courts. And it is safe to say that no court has held debts cre- 
 ated in aid of railroad companies, by counties or towns, valid on any 
 other ground than that the purpose for which the taxes were levied 
 was a public use, a purpose or object which it was the right and the 
 duty of State governments to assist by money raised from the people 
 by taxation. The argument in opposition to this power has been, 
 that railroads built by corporations organized mainly for purposes 
 of gain the roads which they built being under their control, and 
 not that of the State were private and not public roads, and the tax 
 assessed on the people went to swell the profits of individuals and 
 not to the good of the State, or the benefit of the public, except in a 
 remote and collateral way. On the other hand it was said that roads, 
 canals, bridges, navigable streams and all other highways had in all 
 times been matter of public concern. That such channels of travel 
 and of the carrying business had always been established, improved, 
 regulated by the State, and that the railroad had not lost this char- 
 acter because constructed by individual enterprise, aggregated into a 
 corporation. 
 
 We are not prepared to say that the latter view of it is not the 
 true one, especially as there are other characteristics of a public na- 
 ture conferred on these corporations, such as the power to obtain^ 
 right of way, their subjection to the laws which govern common car- 
 riers, and the like, which seem to justify the proposition. Of the 
 disastrous consequences which have followed its recognition by the 
 courts and which were predicted when it was first established there 
 can be no doubt. 
 
 We have referred to this history of the contest over aid to railroads 
 by taxation to show that the strongest advocates for the validity of 
 these laws never placed it on the ground of the unlimited power in 
 the State legislature to tax the people, but conceded that where the 
 purpose for which the tax was to be issued could no longer be 
 justly claimed to have this public character, but was purely in aid 
 of private or personal objects, the law authorizing it was beyond the
 
 LOAN ASSOCIATION V. TOPKKA. 3:1:, 
 
 legislative power, and was an unauthorized invasion of private right. 
 (Okott v. Supervisors, 16 Wallace, 689; People v. Salem, 20 Mich- 
 igan, 152; Jenkins v. Andover, 103 Mass. 94; Dillon on Municipal 
 Corporations, 587; Redfield's Laws of Eailways, 398, rule 2.) 
 
 It must be conceded that there are such rights in every free gov- 
 ernment beyond the control of the State. A government which rec- 
 ognized no such rights, which held the lives, the liberty and the 
 property of its citizens subject at all times to the absolute disposition 
 and unlimited control of even the most democratic depository 01 
 power, is, after all, but a despotism. It is true it is a despotism of 
 the many, of the majority, if you choose to call it so, but it is none 
 the less a despotism. It may well be doubted if a man is to hold" 
 all that he is accustomed to call his own, all in which he has placed 
 his happiness, and the security of which is essential to that happi- 
 ness, under the unlimited dominion of others, whether it is not wiser 
 that this power should be exercised by one man than by many. 
 
 The theory of our governments, State and National, is opposed 
 to the deposit of unlimited power anywhere. The executive, the 
 legislative and the judicial branches of these governments are all of 
 limited and defined powers. 
 
 There are limitations on such power which grow out of the essen- 
 tial nature of all free governments. Implied reservations of indi- 
 vidual rights, without which the social compact could not exist, and 
 which are respected by all governments entitled to the name. No 
 'court, for instance, would hesitate to declare void a statute which 
 enacted that A. and B. who were husband and wife to each other 
 should be so no longer, but that A. should thereafter be the husband 
 of C., and B. the wife of D. Or which should enact that the home- 
 stead now owned by A. should no longer be his, but should hence- 
 forth be the property of B. (Whiting v. Fond du Lac, 25 Wis. 188; 
 Cooley on Constitutional Limitations, 129, 175, 487; Dillon on Mu- 
 nicipal Corporations, 587.) 
 
 Of all the powers conferred upon government that of taxation may 
 be lawfully used and the extent of its exercise is in its very nature 
 unlimited. It is true that express limitation on the amount of tax 
 to be levied or the things to be taxed may be imposed by constitu- 
 tion or statute, but in most instances for which taxes are levied, as 
 the support of the government, the prosecution of war, the National 
 defence, any limitation is unsafe. The entire resources of the people 
 should, in some instances, be at the disposal of the government. 
 
 The power to tax, therefore, is the strongest, the most pervading 
 of all the powers of government, reaching directly or indirectly to
 
 236 PURPOSES FOR WHICH TAXES LAID. 
 
 all classes of the people. It was said by Chief Justice Marshall in 
 the 'case of McCullough v. The State of Maryland, (4 Wheaton 431), 
 that the power to tax is the power to destroy. A striking instance 
 of the truth of the proposition is seen in the fact that the existing 
 tax of ten per cent imposed by the United States on the circulation 
 of all other banks than the National banks, drove out of existence 
 every state bank of circulation within a year or two after its passage. 
 This power can as readily be employed against one class of individ- 
 uals and in favor of another, so as to ruin the one class and give 
 unlimited wealth and prosperity to the other, if there is no implied 
 limitation of the uses for which the power may be exercised. 
 
 To lay with one hand the power of the government on the property 
 of the citizen, and with the other to bestow it upon favored indi- 
 viduals to aid private enterprises and build up private fortunes, is 
 none the less a robbery because it is done under the forms of law 
 and is called taxation. This is not legislation. It is a decree under 
 legislative forms. 
 
 Nor is it taxation. A "tax," says Webster's Dictionary, "is a rate 
 or sum of money assessed on the person or property of a citizen by 
 government for the use of nation or state." "Taxes are burdens or 
 charges imposed by the legislature upon persons or property to raise 
 money for public purposes." Cooley on Const. Lim. 479. 
 
 Coulter, J., in Northern Liberties v. St. John's Church, 13 Pa. 
 St. 104 (see, also, Pray v. Northern Liberties, 31 Id. 69; Matter 
 of Mayor of New York, 11 Johnson, 77; Camden v. Allen, 2 Dutcher 
 398; Sharpless v. Mayor of Philadelphia, supra; Hanson v. Vernon, 
 27 Iowa, 47; Whiting v. Fond du Lac, 25 Wis. 188) says, very for- 
 cibly, "I think the common mind has everywhere taken in the un- 
 derstanding that taxes are a public imposition, levied by authority 
 of the government for the purpose of carrying on the government in 
 all its machinery and operations that they are imposed for a pub- 
 lic purpose." 
 
 We have established, we think, beyond cavil that there can be no 
 lawful tax which is not laid for a public purpose. It may not bo 
 easy to draw the line in all cases so as to decide what is a public 
 purpose in this sense and what is not. 
 
 It is undoubtedly the duty of the legislature which imposes or 
 authorizes municipalities to impose a tax to see that it is not to be 
 used for purposes of private interest instead of public use and tho 
 courts can only be justified in interposing when a violation of this 
 principle is clear and the reason for interference cogent. And in 
 deciding whether, in the given case, the object for which the taxes
 
 LOAN ASSOCIATION V. TOPEKA. 237 
 
 are assessed falls upon the one side or the other of this line they 
 must be governed mainly by the course and usage of the government, 
 the objects for which taxes have been customarily and by long 
 course of legislation levied, what objects or purposes have been con- 
 sidered necessary to the support and for the proper use of the gov- 
 ernment, whether State or municipal. Whatever lawfully pertains 
 to this and is sanctioned by time and the acquiescence of the people 
 may well be held to belong to the public use, and proper for the 
 maintenance of good government, though this may not be the only 
 criterion of rightful taxation. 
 
 But in the case before us, in which the towns are authorized to 
 contribute aid by way of taxation to any class of manufacturers, 
 there is no difficulty in holding that this is not such a public pur- 
 pose as we have been considering. If it be said that a benefit results 
 to the local public of a town by establishing manufactures, the same 
 may be said of any other business or pursuit which employs capital 
 or labor. The merchant, the mechanic, the innkeeper, the banker, 
 the builder, the steamboat owner are equally the promoters of the 
 public good, and equally deserving the aid of the citizens by forced 
 contributions. No line can be drawn in favor of the manufacturer 
 which would not open the coffers of the public treasury to the im- 
 portunities of two-thirds of the business men of the city or town. 
 
 A reference to one or two cases adjudicated by courts of the highest 
 character will be sufficient, if any authority were needed, to sustain 
 us in this proposition. 
 
 In the case of Allen v. The Inhabitants of Jay, (60 Me. 124), 
 the town meeting had voted to loan their credit to the amount of 
 $10,000 to Hutchins and Lane, if they would invest $12,000 in a 
 steam saw-mill, grist-mill, and box-factory machinery, to be built in 
 that town by them. There was a provision to secure the town by 
 mortgage on the mill, and the selectmen were authorized to issue 
 town bonds for the amount of the aid so voted. Ten of the tax- 
 able inhabitants of the town filed a bill to enjoin the selectmen from 
 issuing the bonds. 
 
 The Supreme Judicial Court of Maine, in an able opinion by Chief 
 Justice Appleton, held that this was not a public purpose, and that 
 the town could levy no taxes on the inhabitants in aid of the enter- 
 prise, and could, therefore, issue no bonds, though a special act of 
 the legislature had ratified the vote of the town, and they granted 
 the injunction as prayed for. 
 
 Shortly after the disastrous fire in Boston, in 1872, which laid an 
 important part of the city in ashes, the governor of the State con-
 
 238 PURPOSES FOR WHICH TAXES LAID. 
 
 vened the legislative body of Massachusetts, called the General Court, 
 for the express purpose of affording some relief to the city and its 
 people from the sufferings consequent on this great calamity. A 
 statute was passed, among others, which authorized the city to issue 
 its bonds to an amount not exceeding twenty millions of dollars, 
 which bonds were to be loaned, under proper guards for securing the 
 city from loss, to the owners of the ground whose buildings had been 
 destroyed by fire, to aid them in rebuilding. 
 
 In the case of Lowell v. The City of Boston, in the Supreme Ju- 
 dicial Court of Massachusetts, the validity of this act was consid- 
 ered. We have been furnished a copy of the opinion, though it is 
 not yet reported in the regular series of that court. The American 
 Law Review for July, 1873, says that the question was elaborately 
 and ably argued. The court, in an able and exhaustive opinion, de- 
 cided that the law was unconstitutional, as giving the right to tax 
 other than for a public purpose. 
 
 The same court had previously decided, in the case of Jenkins v. 
 Andover, (103 Mass. 741), that a statute authorizing the town au- 
 thorities to aid by taxation a school established by the will of a citi- 
 zen, and governed by trustees selected by the will, was void because 
 the school was not under the control of the town officers, and was 
 not, therefore, a public purpose for which taxes could be levied on 
 the inhabitants. 
 
 The same principle exactly was decided by the state court of Wis- 
 consin in the case of Curtis v. Wliipple, (24 Wis. 350). In that 
 case a special statute which authorized the town to aid the Jefferson 
 Liberal Institute was declared void because, though a school of learn- 
 ing, it was a private enterprise not under the control of the town 
 authorities. In the subsequent case of Whiting v. Fond du Lac. 
 already cited, the principle is fully considered and reaffirmed. 
 
 These cases are clearly in point, and they assert a principle which 
 meets our cordial approval. 
 
 Judgment affirmed. 
 Mr. Justice CLIFFORD dissenting.
 
 LOWELL V. CITY OF BOSTON. 239 
 
 LOWELL V. CITY OF BOSTON. 
 
 Supreme Judicial Court of Massachusetts. March, 1873. 
 Ill Mass. 4^4. 
 
 WELLS, J. This is a proceeding under the provisions of the Gen. 
 Sts., c. 18, 79, to restrain the city of Boston from issuing its bonds 
 for the purpose of raising a fund to be appropriated to the object of 
 rendering aid, by way of loans, in rebuilding upon that portion of 
 the city which was burned over in November, 1872. The issue of 
 bonds for that purpose, to an amount not exceeding $20,000,000, was 
 expressly authorized by the St. of 1872, c. 364. The question, there- 
 fore, is distinctly presented whether the authority thus conferred 
 upon the city is contrary to the provisions of the Constitution of the 
 Commonwealth. 
 
 The power to levy taxes is founded on the right, duty and re- 
 sponsibility to maintain and administer all the governmental func- 
 tions of the State, and to provide for the public welfare. To justify 
 any exercise of the power requires that the expenditure which it i? 
 intended to meet shall be for some public service, or some object 
 which concerns the public welfare. The promotion of the interests 
 of individuals, either in respect of property or .business, although it 
 may result incidentally in the advancement of the public welfare, is, 
 in its essential character, a private and not a public object. However 
 fcertain and great the resulting good to the general public, it does 
 not, by reason of its comparative importance, cease to be incidental. 
 The incidental advantage to the public, or to the State, which re- 
 sults from the promotion of private interests, and the prosperity of 
 private enterprises or business, does not justify their aid by the use 
 of public money raised by taxation, or for which taxation may be- 
 come necessary. It is the essential character of the direct object of 
 the expenditure which must determine its validity, as justifying a 
 tax, and not the magnitude of the interest to be affected, nor the 
 degree to which the general advantage of the community, and thus- 
 the public welfare, may be benefited by their promotion. 
 
 The principle of this distinction is fundamental. It underlies all 
 government that is based on reason rather than upon force. It is 
 expressed in various forms in the Constitution of Massachusetts. In 
 Art. XI of c. 2, 1, by restricting the issuing of moneys from the 
 treasury to purposes of "the necessary defence and support of the 
 Commonwealth; and for the protection and preservation of the in-
 
 240 PURPOSES FOR WHICH TAXES LAID. 
 
 habitants thereof, agreeably to the acts and resolves of the Genera] 
 Court." In Art. IV. of c. 1, 1, by declaring the purposes for 
 which the power of taxation, in its various forms, may be exercised 
 by the General Court, to be "for the public service, in the necessary 
 defence and support of the government of the said Commonwealth, 
 and the protection and preservation of the subjects thereof." The 
 purport and scope of these provisions are made more distinct, and 
 the essential idea upon which they rest is disclosed by reference to 
 the preceding Declaration of Rights, by which the theory and pur- 
 pose of this frame of government were set forth by its founders. 
 Art. X declares, "Each individual of the society has a right to be 
 protected by it in the enjoyment of his life, liberty and property, 
 according to standing laws. He is obliged, consequently, to contrib- 
 ute his share to the expense of this protection; to give his personal 
 service, or an equivalent, when necessary; but no part of the prop- 
 erty of any individual can, with justice, be taken from him, or ap- 
 plied to public uses, without his own consent or that of the repre- 
 sentative body of the people. In fine, the people of this Common- 
 wealth are not controllable by any other laws than those to which 
 their constitutional representative body have given their consent. 
 And whenever the public exigencies require that the property of any 
 individual should be appropriated to public uses, he shall receive a 
 reasonable compensation therefor." 
 
 The power of the government, thus constituted, to affect the indi- 
 vidual in his private rights of property, whether by exacting contri- 
 butions to the general means, or by sequestration of specific property, 
 is confined, by obvious implication as well as by express terms, to 
 purposes and objects alone which the government was established to 
 promote, to wit, public uses and the public service. This power, 
 when exercised in one form, is taxation; in the other, is designated" 
 as the right of eminent domain. The two are diverse in respect of 
 the occasion and mode of exercise, but identical in their source,, to 
 wit, the necessities of organized society; and in the end by which 
 alone the exercise of either can be justified, to wit, some public serv- 
 ice or use. It is due to their identity in these respects that the two 
 powers, otherwise so unlike, are associated together in the same arti- 
 cle. So far as it concerns the question what constitutes public use 
 or service that will justify the exercise of these sovereign powers over 
 private rights of property, which is the main question now to be 
 solved, this identity renders it unnecessary to distinguish between 
 the two forms of exercise, as the same tests must apply to and con- 
 trol each. An appropriation of money raised by taxation, or of prop-
 
 LOWELL V. CITY OF BOSTON. 241 
 
 erty taken by right of eminent domain, by way of gift to an indi- 
 vidual for his own private uses exclusively, would clearly be an ex- 
 cese of legislative power. The distinction between this and its appro- 
 priation for the construction of a highway, is marked and obvious. 
 It is independent of all considerations of resulting advantage. The 
 individual, by reason of his capacity, enterprise or situation, might 
 be enabled to employ the money or property thus conferred upon 
 him in such a manner as to furnish employment to great numbers of 
 the community, to give a needed impulse to business of various kinds, 
 and thus promote the general prosperity and welfare. In this view, 
 it might be shown to be for the public good to take from the unen- 
 terprising and thriftless their unemployed capital and entrust it to 
 others who will use it to better advantage for the interests of the 
 community. But it needs no argument to show that such an arbi- 
 trary exercise of power would be a violation of the constitutional 
 rights of those from whom the money or property was taken, and an 
 unjustifiable usurpation. 
 
 In the case of a highway, on the other hand, its direct purpose of 
 public use, determines conclusively the question in support of the 
 exercise, both of the right of eminent domain and of taxation, how- 
 ever trifling the advantage to the public compared with that to indi- 
 viduals. The extent or value of the public use, and the wisdom and 
 propriety of the appropriation, are matters to be determined exclu- 
 sively by the legislature, either directly or by its delegated authority. 
 When the power exists it is not within the province of the court to 
 interfere with its exercise, by any inquiry into its expediency. 
 
 The two instances, above referred to, illustrate the sense in which 
 the furthering of the public good by promotion of the interests of 
 many individuals, differs from a public service. A public service 
 may or may not be productive, practically, of public advantage. Re- 
 sulting advantage to the public does not of itself give to the means 
 by which it is produced the character of a public service. 
 
 . . . . Such an appropriation of property [i. e. for a rail- 
 way company] is justified and can only be justified, by the public 
 service thereby secured in the increased facilities for transportation 
 of freight and passengers, of which the whole community may right- 
 fully avail itself. The franchises of the corporation are held charged 
 with this duty and trust for the performance of the public service, 
 for which they were granted. Commonwealth v. Wilkinson, 16 Pick. 
 175. Same v. Boston & Maine Railroad, 3 Gush. 25, 45. Old Col- 
 
 16
 
 242 PURPOSES FOIl WHICH TAXES LAID. 
 
 ony & Fall River Railroad Co. v. County of Plymouth, 14 Gray 155, 
 161. 
 
 This right of eminent domain is often allowed to be exercised in 
 favor of private aqueduct companies. Here, too, the public service, 
 intended as the object of the grant of the right, is obvious. And 
 although the interests of the aqueduct company are ordinarily relied 
 upon to secure the proper performance of the service, yet, in case of 
 any failure or abuse, the obligation may doubtless be otherwise en- 
 forced. Lumbard v. Stearns, 4 Gush. 60. 
 
 There is no public use or public service declared in the statute now 
 under consideration, and we are of opinion that none can be found 
 in the purposes of its provisions. By its terms the proceeds of the 
 bonds, thereby authorized, are to be expended in loans to persons 
 who are or may become owners of land in Boston, "the buildings 
 upon which were burned by the fire in said Boston on the ninth and 
 tenth days of November," 1872. The ultimate end and object of the 
 expenditure, as indicated by the provisions of the statute itself, is 
 "to insure the speedy rebuilding on said land." 
 
 The general result may indeed be thus stated collectively,, as a 
 single object of attainment; but the fund raised is intended jto be 
 appropriated distributively, by separate loans to numerous individ- 
 uals, each one of which will be independent of any relation to the 
 others, or to any general purpose, except that of aiding individual 
 enterprise in matters of private business. The property thus created 
 will remain exclusively private property, to be devoted to private 
 uses at the discretion of the owners of the land; with no restriction 
 as to the character of the buildings to be erected, or the uses to 
 which they shall be devoted; and with no obligation to render any 
 service or duty to the Commonwealth or to the city, except to repay 
 the loan, or to the community at large or any part of it. If it be 
 assumed that the private interests of the owners will lead them to 
 reestablish warehouses, shops, manufactories and stores ; and that the 
 trade and business of the place will be enlarged or revived by means 
 of the facilities thus provided; still these are considerations of pri- 
 vate interest and if expressly declared to be the aim and purpose of 
 the act they would not constitute a public object in a legal sense. 
 
 As a judicial question the case is not changed by the magnitude 
 of the calamity which has created the emergency; nor by the great- 
 ness of the emergency or the extent and importance of the interests 
 to.be promoted. These are considerations affecting only the pro- 
 priety and expediency of the expenditure as a legislative question. If
 
 UNITED STATES V. REALTY COMPANY. 243 
 
 the expenditure is in its nature such as will justify taxation under 
 any state of circumstances it belongs to the Legislature exclusively 
 to determine whether it shall be authorized in the particular case; 
 and however slight the emergency or limited or unimportant the 
 interests to be promoted thereby, the court has no authority to revise 
 the legislative action. 
 
 On the other hand, if its nature is such as not to justify taxa- 
 tion in any and all cases in which the Legislature might see fit to 
 give authority therefor, no stress of circumstances affecting the expe- 
 diency, importance or general desirableness of the measure, and no 
 concurrence of legislative and municipal action, or preponderance of 
 popular favor in any particular case, will supply the element neces- 
 sary to brinsr it within the scope of legislative power. 
 
 The expenditure authorized by this statute being for private and 
 not for public objects, in a legal sense, it exceeds the constitutional 
 powers of the Legislature; and the city cannot lawfully issue the 
 bonds for the purposes of the act. 
 
 This discussion has, for obvious reasons, taken a somewhat wider 
 range than was required for the decision of the case immediately 
 before us. We have purposely confined it to the consideration of 
 judicial decisions and utterances in Massachusetts; because the ques- 
 tion is of legislative power under the Constitution of this Common- 
 wealth. The recent decision of the Supreme Judicial Court of 
 Maine however, in the case of Allen v. Jay, 60 Maine, 124, to which 
 we are referred, is of especial significance and importance from the 
 similarity in the organic law of the two states and the almost exact 
 identity of the question presented by the facts. It fully sustains the 
 conclusions to which we have been led in this case. 
 
 Demurrer overruled. Injunction ordered. 
 
 UNITED STATES V. REALTY COMPANY. 
 UNITED STATES V. GAY. 
 
 Supreme Court of the United States. October, 1895. 
 163 United States 427. 
 
 Mr. Justice PECKHAM delivered the opinion of the court. 
 
 These are writs of error to the Circuit Court of the United States 
 for the Eastern District of Louisiana. The actions were brought in 
 that court under the second section of the act approved March 3,
 
 244 PURPOSES FOR WHICH TAXES LAID. 
 
 1887, c. 359, 24 Stat. 505, commonly known as the Tucker act. 
 Both actions were brought to obtain payment of moneys by reason 
 of the legislation of Congress in regard to sugar bounties. The court 
 below in each case gave judgment for the plaintiffs therein, and the 
 government by writ of error brings the cases here for review. 
 
 Counsel for the government admit that the plaintiff in each case 
 has complied with all the terms and conditions of the act in order 
 to entitle each to recover the moneys demanded in these suits under 
 the act of 1895, provided that act is constitutional and valid. If it 
 be, the judgment in each case must be affirmed. 
 
 The proper disbursing officer of the Treasury refused to pay the 
 warrants drawn upon the treasury in these cases upon the sole ground 
 that the act is unconstitutional. He has been fortified in his opinion 
 and action by the views expressed in the Court of Appeals of the 
 District of Columbia, in the case of the United States ex rel. Miles 
 Planting & Manufacturing Go. v. Carlisle, reported in 5 D. C. App. 
 138. That company, which was a Louisiana corporation engaged in 
 the sugar business, claimed that the repealing portion of the act of 
 August 28, 1894, was not effective so as to cut off the rights of per- 
 sons who had prior to its passage procured licenses for the fiscal year 
 beginning July 1, 1894, and had expended money thereunder. The 
 company therefore applied to the Supreme Court of the District of 
 Columbia for a writ of mandamus against the Secretary of the Treas- 
 ury and the Commissioner of Internal Revenue to compel action on 
 their part under the act of 1890. The application was resisted by 
 the government upon several grounds, among others, that the bounty 
 legislation of 1890 was unconstitutional. The motion was denied 
 upon all the grounds set up by the government, including that of 
 unconstitutionality. Mr. Justice Shepard delivered the opinion of 
 the court and Mr. Justice Morris concurred with him upon all points. 
 Mr. Chief Justice Alvey expressed no opinion upon the constitutional 
 question because the conclusion that Congress had power to repeal 
 the provision giving the bounty for sugar rendered it unnecessary to 
 pass upon the unconstitutionality of the original bounty clause. 
 
 It was by reason of this opinion upon the validity of the bounty 
 legislation of 1890 that the Comptroller of the Treasury ree'xam- 
 ined the rulings which had been previously made in approving bounty 
 claims theretofore presented; and he had concluded to and did refer 
 another case involving this question, then before him, to the Courf 
 of Claims for its decision in accordance with the provisions of section 
 1063 of the Revised Statutes, but before the case reached the Court
 
 UNITED STATES V. REALTY COMPANY. 245 
 
 of Claims the present cases had been commenced and decided in 
 Louisiana. 
 
 *... 
 
 In the view we take of these cases the rights of the parties may 
 be passed upon and actions finally decided without our entering upon 
 a discussion as to the validity of the bounty legislation contained in 
 the act of 1890, and without deciding that question. For the pur- 
 pose of the discussion of this case we think it unnecessary to decide 
 whether or not such legislation is beyond the power of Congress. We 
 are of opinion that in either case the appropriations of money in the 
 act of 1895 to be paid to certain manufacturers and producers of 
 sugar who had complied with the act of 1890 were within the power 
 of Congress to make, and were constitutional and valid. 
 
 The production and manufacture of sugar in the Southern and 
 some portions of the Western States from sugar cane and from 
 sorghum and beets had become at the time of the passage of the act 
 of 1890 an industry in which large numbers of the citizens of this 
 country were engaged, and its prosecution involved the use of a 
 very large amount of capital. The tariff theretofore had been very 
 high upon imported sugar, and the native industry had thereby been 
 encouraged, fostered and greatly increased. The subject of how to 
 treat this industry was under discussion in Congress while the tariff 
 act of 1890 was before it, and it finally decided the question by 
 enacting the bounty clause of that act. Before that time the revenue 
 on imported sugar had amounted to nearly $60,000,000 in one year. 
 To put sugar on the free list would reduce the revenue that amount, 
 but at the same time it might, as was urged in Congress ruin the 
 persons engaged in the industry in this country. So the tariff on 
 sugar was reduced while at the same time a bounty was placed upon 
 its production here of an amount which it was thought would equal 
 the protection the industry had theretofore enjoyed under the tariff. 
 The act was approved by the President and no question of its validity 
 was made by any officer of the government having any duties to per- 
 form under it. The bounty provision was by the terms of the act 
 to remain in force for fifteen years. The citizens who were engaged 
 in the manufacture of sugar prepared to comply with the provisions 
 of the law under which the bounty was to be payable. 
 
 Under that act and during its existence large sums of money were 
 paid to sugar manufacturers as a bounty, and all manufacturers con- 
 tinued to manufacture in reliance upon its provisions. During these 
 years no officer of the government questioned the validity of the act.
 
 24G PURPOSES FOR WHICH TAXES LAID. 
 
 and the bounties earned under it were paid without objection or any 
 hint that objection would thereafter be taken while the law was in 
 force. This condition continued for about three years. In the win- 
 ter, spring and summer of 1894 it is matter of history that the dis- 
 cussion of the tariff act, which finally became a law on the 28th of 
 August of that year, was continually going on in Congress and 
 through the public prints of the country. Before the passage of the 
 act it was, of course, wholly uncertain as to what its provisions would 
 be, including the question of the bounty for the manufacture of sugar. 
 No man could predict it. No one could have stated whether the 
 bounty would be taken off entirely or materially reduced, or left as 
 it stood by' the act of 1890. The whole question of tariff legislation 
 at that time was full of uncertainty. In the meantime the season 
 was approaching when the manufacturer of sugar must decide what 
 to do. He was confronted with the fact that the act of 1890 was 
 still in existence, and under its provisions he must, if he meant to 
 avail himself of the bounties which might be payable under the act, 
 make his application for and obtain a license prior to July 1 of that 
 
 year At the same time, if he made application and 
 
 obtained his license and commenced the manufacture of sugar under 
 the provisions of the act of 1890, he could not be certain that the 
 act of Congress might not strike out altogether the provision for the 
 payment of any bounty and he be left in such a condition that he 
 could neither manufacture with profit nor abstain from manufactur- 
 ing without loss. All this by no fault of his; doing his very best, 
 exerting his every energy, sleeplessly vigilant at all points, it wa* 
 yet impossible for him to decide what to do in this state of uncer- 
 tainty, or even to guess which would be the road least liable to lead 
 to great pecuniary loss, if not to ruin. Already embarked in the 
 business and in this state of uncertainty, the manufacturer finally 
 concludes to go on as if the act were to remain in existence, feeling 
 probably a firm reliance that the government would not treat its citi- 
 zens unjustly or unfairly by a sudden repeal of the bounty law with- 
 out making such temporary provision of another nature by which 
 justice would be done him. He applied for a license and commenced 
 his preparations, as the then existing act of 1890 provided that he 
 might do. Making his arrangements for the prospective year and 
 preparing for the manufacture of sugar during that time, the manu- 
 facturer is, subsequently, confronted by the act of Congress taking 
 effect August 28, 1894, totally repealing the provisions of the act of 
 1890 upon the subject of bounties and prohibiting from that time 
 the payment thereof. This was the position of the plaintiff, Mr. Gay,
 
 UNITED STATES V. REALTY COMPANY. 24? 
 
 and of large numbers of other people. The Realty Company occu- 
 pied a still more unfortunate position. That company had manu- 
 factured sugar between the first of July, 1893, and the first of July, 
 1894, during the whole of which period the act of 1890 was in full 
 force and after July 1st, 1894, the company obtained the warrants, 
 duly certified and authenticated by the local government officers in 
 Louisiana, for the payment of its claim to bounty, but before actual 
 payment 'from the Treasury of the United States could be obtained 
 the act of 1894 came into existence, with its provision directing that 
 no further payment of bounty should thereafter be made. Of course, 
 under the circumstances, as set forth in regard to the plaintiffs in 
 the above suits, there can be and is no question made as to the entire 
 good faith of all parties, and the question presented to this court is 
 one of constitutional power simply. 
 
 This condition of affairs confronted the Congress which passed the 
 appropriation in question. It is now argued by counsel for the gov- 
 ernment that Congress had no valid power to recognize these claims 
 against the United States made by the sugar manufacturers, because 
 the provision in regard to the payment of bounties contained in the 
 act of 1890 is unconstitutional. 
 
 Upon this assumption it is said that no claim, legal, moral, equita- 
 ble or honorable can be created in favor of the sugar manufacturer 
 and against the government, and that where there is neither legal, 
 moral nor honorable obligation to pay, Congress has no power to 
 appropriate money. 
 
 We are of opinion that the parties, situated as were the plaintiffs 
 in these actions, acquired claims upon the government of an equita- 
 ble, moral or honorary nature. Could Congress legally recognize and 
 pay them although the act of 1890 as to its bounty provisions might 
 be unconstitutional? It is true that in general an unconstitutional 
 act of Congress is the same as if there were no act. That is regard- 
 ing it in its pureh" legal aspect. Being in violation of the Constitu- 
 tion, that instrument must govern, and no one can base any legal 
 claim as arising out of such an act. That is a very different princi- 
 ple, however, from that which we think governs in this case. The 
 persons for whose benefit the appropriation contained in the act of 
 1895 was made are not, in the view we take, asserting the existence 
 of a legal and valid debt against the United States which is at the 
 same time based upon an unconstitutional act of Congress. No such 
 inconsistent and illogical position is taken. They are asserting that 
 by reason of the occurrences which took place before the appropria-
 
 248 PURPOSES FOR WHICH TAXES LAID. 
 
 tion, among which was the passage of the act of 1890, they were so 
 placed before Congress as to authorize that body to recognize the 
 equities of the situation, and to pay their claims which, while they 
 were not of a legal character, were nevertheless of so meritorious and 
 equitable a nature as to authorize the nation through its Congress to 
 appropriate money to pay them. 
 
 There was enough in the case as presented to Congress upon which 
 to base the assertion that there was a moral and honorable claim 
 upon the public treasury which that body had the constitutional right 
 to recognize and pay. 
 
 Under the provisions of the Constitution, (article 1, section 8) 
 Congress has power to lay and collect taxes, etc., "to pay the debts 
 of the United States." Having power to raise money for that pur- 
 pose, it of course follows that it has power when the money is raised 
 to appropriate it to the same object. What are the debts of the 
 United States within the meaning of this constitutional provision? 
 It is conceded and indeed it cannot be questioned that the debts are 
 not limited to those which are evidenced by some written obligation, 
 or to those which are otherwise of a strictly legal character. The 
 term "debt" includes those debts or claims which rest upon a merely 
 equitable or honorary obligation, and which would not be recovered 
 in a court of law if existing against an individual. The nation, 
 speaking broadly, owes a "debt" to an individual when his claim 
 grows out of general principles of right and justice; when, in other 
 words, it is based upon considerations of a moral or merely hon- 
 orary nature, such as are binding on the conscience or the honor of 
 an individual, although the debt could obtain no recognition in a 
 court of law. The power of Congress extends at least as far as the 
 recognition and payment of claims against the government which 
 are thus founded. To no other branch of the government than Con- 
 gress could any application be successfully made on the part of the 
 owners of such claims or debts for the payment thereof. Their recog- 
 nition depends solely upon Congress, and whether it will recognize 
 claims thus founded must be left to the discretion of that body. 
 Payments to individuals, not of right or of a merely legal claim, but 
 payments in the nature of a gratuity, yet having some feature of 
 moral obligation to support them, have been made by the govern- 
 ment by virtue of the acts of Congress, appropriating the public 
 money, ever since its foundation. Some of the acts were based upon 
 considerations of pure charity. A long list of acts directing pay- 
 ments of the above general character is appended to the brief of one
 
 UNITED STATES V. REALTY COMPANY. 240 
 
 of the counsel for the defendants in error. The acts are referred to 
 not for the purpose of asserting their validity in all cases, but a~ 
 evidence of what has been the practice of Congress since the adop- 
 tion of the Constitution. See, also, among other cases in this court, 
 Emerson v. Hall 13 Pet. 409; United States \. Price, 116 U. S. 
 43; Williams v. Heard, 140 U. S. 529. The last cited case arose 
 under an act of Congress in relation to the Alabama claims. 
 
 The power to provide for claims upon the State founded in equity 
 and justice has also been recognized as existing in the state govern- 
 ments. For example, in Guilford v. Chenango County, 13 N. Y. 
 143, it was held by the New York court of appeals that the legis- 
 lature was not confined in its appropriation of public moneys to sums 
 to be raised by taxation in favor of individuals to cases in which 
 legal demands existed against the State, but that it could recognize 
 claims founded in equity and justice in the largest sense of these 
 terms or in gratitude or in charity. 
 
 Of course, the difference between the powers of the State legis- 
 latures and that of the Congress of the United States is not lost sight 
 of, but it is believed that in relation to the power to recognize and 
 to pay obligations resting only upon moral considerations or upon 
 the general principles of right and justice, the Federal Congress 
 stands upon a level with the state legislature. 
 
 In truth, the general proposition that Congress can direct the pay- 
 ment of debts which have only a strong moral and honorable obliga- 
 tion for their support is not, as we understand it, denied by the 
 learned counsel for the United States; but it is claimed that in these 
 cases no foundation whatever is laid for its application, because the 
 claims arise out of the unconstitutional provisions of the act giving 
 bounties in 1890. It is impossible, it is said, to build even an equity 
 Mit of an act of Congress which is utterly void; that as the original 
 act offering and paying bounties was void, it cannot become legal to 
 pay them because of any alleged equities of those who would suffer 
 from their sudden discontinuance as set forth in these cases. For 
 the reasons already given we do not think, under the -circumstances 
 surrounding these cases, that the validity of the act of 1895, can be 
 questioned successfully. 
 
 In regard to the question whether the facts existing in any given 
 case bring it within the description of that class of claims which 
 Congress can and ought to recognize as founded upon equitable and 
 moral considerations and grounded upon principles of right and 
 justice, we think that generally such question must in its nature be
 
 250 PURPOSES FOR WHICH TAXES LAID. 
 
 one for Congress to decide for itself. Its decision recognizing such 
 a claim and appropriating money for its payment can rarely, if ever, 
 be the subject for review by the judicial branch of the government. 
 Upon the general principle, therefore, that the government of the 
 United States, through Congress, has the right to pay the debts of 
 the United States, and that the claims in these cases are of a nature 
 which that body might rightfully decide to constitute a debt payable 
 to the United States upon considerations of justice and honor, we 
 think the act of Congress making appropriations for the payment of 
 such claims was valid without reference to the question of the valid- 
 ity or invalidity of the original act providing for the payment of 
 bounties to manufacturers of sugar, as contained in the tariff act of 
 1890. The judgments in these cases are right, irrespective of how 
 that question might be decided, or of any conclusion that might be 
 reached upon other questions suggested at the bar. 
 
 The judgments are, therefore, 
 
 Affirmed. 
 
 Mr. Justice WHITE did not sit in nor take any part in the decision 
 of these cases.
 
 CHAPTER V. 
 
 THE PURPOSE MUST PERTAIN TO THE DISTRICT 
 
 TAXED. 
 
 I. DISCRETION OF THE LEGISLATURE. 
 
 GORDON, APPELLAXT, VS. CORNES ET AL. RESPOND- 
 ENTS. 
 
 Court of Appeals of New York. March, 1872. 
 47 New York 608. 
 
 Appeals from judgments of the General Term of the supreme 
 court in the seventh judicial district, affirming judgments for de- 
 fendants entered upon reports of a referee. 
 
 The actions were in trespass for taking certain personal property 
 of plaintiffs, who were taxpayers and residents in the village of 
 Brockport, Monroe county. Defendant, Williams was the tax col- 
 lector, and the other defendants were trustees of said village. 
 
 RAPALLO, J. The appellants in these actions claim that the act 
 of the legislature authorizing the tax for the collection of which their 
 property was levied upon, was unconstitutional, and that, therefore, 
 the trustees who issued the warrant, and the collector who attempted 
 to execute it were guilty of a trespass. 
 
 The act in question was passed March 19, 1867 (Laws of 1867, 
 chap. 96), and empowered the trustees of the village of Brockport to 
 raise the money necessary to carry into effect certain proposals which 
 they had made pursuant to chapter 466 of the Laws of 1866, for the 
 establishment of a normal and training school in that village, which 
 proposals had been accepted, and to that end to levy and collect 
 taxes from time to time, as they might deem necessary, but not ex- 
 ceeding $50,000 in the aggregate. 
 
 The first alleged ground of objection to the validity of this act is, 
 that the institution for which the money was to be raised was not a 
 local one, but was for the equal benefit of the whole State, and that 
 the assessment ought to be imposed with equality upon all property 
 within the State. 
 
 There can be no doubt of the correctness of the general proposi- 
 
 251
 
 252 MUST PERTAIN TO DISTRICT TAXED. 
 
 tion, that the principle upon which taxation is founded is that the 
 tax-payer is supposed to receive just compensation in the benefits 
 conferred by government, and in the proper application of the tax; 
 and that in the exercise of the taxing power the legislature ought, 
 as nearly as practicable, to apportion the tax according to the benefit 
 which each tax-payer is supposed to receive from the object upon 
 which the tax is expended. 
 
 But the power of apportionment is included in the power to im- 
 pose taxes, and is vested in the legislature; and in the absence of 
 any constitutional restraint, the exercise by it of such power of ap- 
 portionment cannot be reviewed by the courts. (The People v. The 
 Mayor, etc., 4 Comst. 419.) The constitutions of some of our sister 
 States contain special provisions designed to guard against an in- 
 equitable exercise of this power, and to secure equality in the dis- 
 tribution of the public burdens. A violation of any such provisions 
 would undoubtedly be cognizable by the courts. But in this State 
 such restraints have not been deemed necessary, and the people have 
 been content to leave to the wisdom and justice of the legislature, un- 
 restrained by specific regulations, the subject of determining how the 
 public burdens shall be apportioned among them. (Prov. Bank v. 
 Billings, 4 Peters 514, 561, 563; 4 Corns. 426, 427, 429; Thomas v. 
 Leland, 24 Wend. 65 ; Town of Guilford v. Supervisors of Chenango, 
 13 N. Y. 143-; Bank of Rome v. Village of Rome, 18 N. Y. 38; 
 Brewster v. City of Syracuse, 19 N. Y. 116.) 
 
 To undertake to review the action of the legislature in this respect, 
 and to enforce by judicial power, absolute equality of taxation, or to 
 declare a law unconstitutional on the ground that the locality is 
 taxed for what might seem to the court more than its just propor- 
 tion for an expenditure for a public purpose, would be an usurpa- 
 tion of the province of the legislature. (4 Comst. 426; Darlington 
 v. The Mayor, 31 N. Y. 190.) 
 
 It would be going too far to deny that the provisions of the Con- 
 stitution, which declare that no person shall be deprived of property, 
 without due process of law, and that private property shall not be 
 taken for public use without just compensation, would afford protec- 
 tion to the citizens against impositions made nominally in the form 
 of taxes, but which were in fact forced levies upon individuals or 
 confiscations of private property; as for instance, if the general ex- 
 penses of the government of the State, or of one of its municipal 
 divisions, should be levied upon the property of an individual or set 
 of individuals, or perhaps upon a particular district. Cases of this 
 description might be imagined in which an act would fall within the
 
 GORDON V. CORNES ET AL. ->53 
 
 express prohibitions of the Constitution. But to raise the constitu- 
 tional question would require an extreme case, where no apportion- 
 ment of the tax with reference to benefit should be attempted, and 
 no discretion on the subject exercised, but one set of individuals or 
 one district should be confessedly and arbitrarily required to pay foi 
 benefits conferred upon others who bore no proportion of the bur- 
 den. No such question arises where a tax is imposed upon a par- 
 ticular locality to aid in a public purpose which the legislature may 
 reasonably regard as a benefit to that locality as well as to the State 
 at large. When the legislature has proceeded upon the ground of 
 such mutual benefits, and has undertaken to make the apportion- 
 ment, inequality in the apportionment of the expenses of the under- 
 taking, with reference to the benefits resulting respectively to the 
 State and to the locality, cannot be alleged for the purpose of im- 
 pugning the validity of the act. 
 
 The normal school in question was to be established pursuant to 
 chapter 466 of the Laws of 1866, for the education of teachers for 
 the common schools. The village was, according to the proposals 
 made by the trustees, to furnish the land and buildings required, 
 and to supply furniture to the school to a specified amount. These 
 were to be conveyed to the State and placed under the control and 
 direction of its officers, and the school was to be managed by a local 
 board appointed by the superintendent of public instruction. The 
 village, however, did not undertake to defray any part of the expense 
 of conducting or maintaining the school or any of its departments, 
 and the act plainly implies that these expenses are to be borne by 
 the State. No provision is made by the proposals for any contribu- 
 tion by the village to these expenses, nor is any tax authorized for 
 that purpose by the act of 1867. It also appears that it was a part 
 of the project that there should be a grammar school attached, which 
 was to be free to all children of proper acquirements living in the 
 village. By the act of 1866 the normal scholars were to be selected 
 under the direction of the superintendent of public instruction, who 
 was to provide that every part of the State should have its propor- 
 tionate representation according to population; but if any district 
 should not be fully represented, preference was to be given, in sup- 
 plying the deficiency to those residing in the village where the school 
 was located. 
 
 From this brief summary of the project, it is apparent that the 
 establishment of the school may well have been deemed by the legis- 
 lature a benefit to the locality, as well as to the State at large, and 
 the furnishing of the land, buildings and furniture by the village,
 
 254 MUST PERTAIN TO DISTRICT TAXED. 
 
 may have been considered no more than its just contribution toward 
 such benefit. We cannot say, judicially, that the establishment of 
 this school was so foreign to the interests of the inhabitants of the 
 village that it was beyond the legislative power to authorize the vil- 
 lage to contribute toward its establishment. (Bank of Rome v. The 
 Village of Rome, 18 N. Y. 43.) Without regard, therefore, to the 
 fact that the school was established on the application of the trus- 
 tees of the village, and to the question raised by the counsel for ap- 
 pellant, that none but the tax-payers themselves could give a valid 
 consent to the assumption of the burden, we think that the case dis- 
 closes no want of power in the legislature to direct the levy of the 
 tax authorized by the act of 1867. 
 
 We have examined the cases of Morford v. Unger, (8 Iowa R. 
 82) ; Ryerson v. Utley, (16 Mich. 269) ; and Hammatt v. The City 
 of Philadelphia, (8 Am. Law Reg. U. S., 411) ; to which we have 
 been referred on the part of the appellant. The case of Morford v. 
 Unger follows the cases of Wells v. The City of Weston, (22 Miss. 
 385) ; Cheany v. Horsec, (9 B. Monroe 330) ; and City of Coving- 
 ton v. Southgate, (15 B. Monroe 491), which holds that the legis- 
 lature cannot authorize a municipal corporation to tax, for its own 
 local purposes, land lying beyond its corporate limits, and that an 
 act extending the corporate limits so as to embrace agricultural land 
 at a distance, not needed for city purposes, but only for the purpose 
 of subjecting it to taxation, is a mere pretext, and an invasion of 
 private property under color of the power of taxation. The case of 
 Ryerson v. Utley rests, in part at least, upon a provision of the 
 State Constitution, the effect of which is to take from the legislature 
 the power of taxation for internal improvements. Hammatt v. The 
 City of Philadelphia- holds an act unconstitutional which authorized 
 an assessment on lots fronting on a street for repaving the street, 
 after it had once been opened and paved, on the ground that such 
 repaving was for the benefit of the general public. That decision 
 goes farther than has ever been attempted in this State, and con- 
 flicts with the general course of adjudication here upon similar asr 
 sessments. We find nothing in any of these cases to induce us to 
 vary our conclusion as to the act now in question. 
 
 The judgments should be affirmed with costs. 
 All concur except CHURCH, Ch. J., not voting. 
 
 Judgment Affirmed.
 
 THOMAS V. LELAND ET AL. 255 
 
 THOMAS V. LELAND ET AL. 
 
 Supreme Court of New York. May, 1840. 
 24 Wendell 65. 
 
 COWEN, J. It is objected by the counsel for the plaintiff, first, 
 that the statute of 1835 sought to take the plaintiff's property with- 
 out his consent, and appropriate it to the payment of a private debt 
 due from others; and that such a statute is unconstitutional and 
 void. The consequence is not denied by the counsel for the defend- 
 ants, who insists that the statute is, in effect, no more than any of 
 our ordinary acts imposing local taxes for local improvements of a 
 public character, such as highways and bridges. The object of the 
 statute, and the share of individual or public concern in the tax, 
 may be collected from the acts mentioned in the pleas, and more 
 fully, when connected with the bond set forth in the replication to 
 the second plea of the defendant Mason. Some time previous to 
 March, 1834, the canal commissioners, thinking that the Chenango 
 canal then in progress of construction, might be more economically 
 connected with the great western canal at Whitesborough than at the 
 city of Utica, had fixed on the former place for its termination. 
 Then came the act of March 24th, 1834, authorizing the commission- 
 ers, on the extraordinary expense of a termination at Utica being 
 provided by those more immediately interested, to change the ter- 
 mination to the latter place. Hereupon several individuals, either 
 from public spirit, or in respect to their own profit, joined in a 
 bond to the people, conditioned to pay into the treasury, for the ben- 
 efit of the canal fund, $38,615, the estimated excess, and so much* 
 more as should make good the contracts affected by the change. 
 Thereupon the contemplated change was made. Afterwards, on the 
 llth May, 1835, the legislature deeming the debt thus contracted by 
 individuals, unreasonably partial and onerous, passed the statute 
 now in question, the object of which was to levy the tax on the own- 
 ers of real estate in the city of Utica. The general purpose of rais-- 
 ing the money by tax was, therefore, to construct a canal,' a public 
 highway, which the legislature believed would be a benefit to the city 
 of Utica as such; and, independently of the bond, the case is the 
 ordinary one of local taxation to make or improve a highway. If 
 such an act be otherwise constitutional, we do not see how the cir- 
 cumstance that a bond had been before given securing the same 
 money, can detract from its validity. Should an individual volun- 
 teer to secure a sum of money in itself properly leviable by way of 
 tax on a town or county, there would be nothing in the nature of
 
 256 MUST PERTAIN TO DISTRICT TAXED. 
 
 such an arrangement, which would preclude the legislature from re- 
 sorting, by way of tax, to those who are primarily, and more justly 
 liable. Even should he pay the money, what is there in the consti- 
 tution to preclude his being reimbursed by a tax? 
 
 But, secondly, it is said that, if the act had in view the construc- 
 tion of the canal, then it was unconstitutional, as seeking to take 
 private property for public use, without just compensation, or any 
 compensation. To sustain this argument, it must be denied that th" 
 general profit of the community to which we belong will warrant a 
 tax affecting our property. One answer in the case at bar is, that 
 the improvement in question, was, in itself, a compensation to the 
 plaintiff. Such, at any rate, was the theory of the proceeding, and 
 we must intend that it was carried out in practice. Such was the 
 view taken by the legislature; and they must be left to judge of the 
 compensation. 
 
 But the argument proves quite too much. It would go to cut off 
 entirely many acknowledged powers of taxation; such as that which 
 raises money to relieve the poor, or establish and keep on foot com- 
 mon schools, to build bridges, or work the highway. It confound^ 
 two distinct legislative powers; a simple power of taxation, with the 
 power of taking private property for public use. The former acts 
 upon communities and may be exerted in favor of any object which 
 the legislature shall deem for the public benefit. A tax to build a 
 lunatic asylum, may be mentioned as one instance. If the power to 
 impose such a tax were to be rested on the ground of individual 
 pecuniary benefit to each one who should be called on to contribute, 
 it is quite obvious that it would not be maintained for a moment. 
 Yet who would doubt that such might be imposed on a local com- 
 munity, a county, or even a town? I admit that this power of tax- 
 ation may be abused; but its exercise cannot be judicially restrained 
 so long as it is referable to the taxing power. The only check lies at 
 present in that power being usually exerted on considerable bodies 
 of men, who possess a control in a greater or less degree over its 
 agents. 
 
 Judgment for the defendants. 
 
 If the purpose of the tax is one for which the legislature may constitu- 
 tionally authorize a tax, it may as a rule oblige a local corporation to levy 
 the tax. See Perkins v. Slack, 86 Pa. St. 283 ; Philadelphia v. Field, 58 Pa. St. 
 320; Guilford v. Supervisors 13 N. Y. 143; but see People v. Detroit 28 Mich. 
 228; People v. Batchellor, 53 N. Y. 138.
 
 ST. LOUIS V. FERRY COMPANY. 
 
 2. Jurisdiction over property. 
 ST. LOUIS V. FERRY COMPANY. 
 
 Supreme Court of the United States. December, 1870. 
 11 Wallace 
 
 Mr. Justice SWAYNE delivered the opinion of the court. 
 
 The plaintiff in error instituted five suits in the St. Louis Cir- 
 cuit Court for the recovery of taxes alleged to be due from the ferry 
 company to the city. Upon the petition of the company they were 
 removed into the Circuit Court of the United States for that dis- 
 trict. In that court, by the consent of the parties, the causes were 
 consolidated and thereafter proceeded to trial as one case. The coun- 
 sel upon both sides entered into a written stipulation waiving a jury 
 and the cause was submitted to the court, pursuant to the act of 
 Congress of March 3d, 1865. The court found the facts specially, 
 and the finding is a part of the record. Judgment was given for the 
 defendant. The city excepted and has brought the case here for 
 review. 
 
 The controversy relates to taxes imposed by the city upon the 
 ferry-boats of the defendants, used in conveying freight and passen- 
 gers across the Mississippi River between the city of St. Louis and 
 the opposite Illinois shore. 
 
 It has been said that the power of taxation for the purposes of 
 the commonwealth is a part of all governmental sovereignty and is 
 inseparable from it. It is for the legislature to decide what persons 
 and property shall be reached by the exercise of this function and 
 in what proportions and by what processes and instrumentalities 
 taxes shall be assessed and collected. The authority extends over all 
 persons and property within the sphere of its territorial jurisdiction. 
 
 Where there is jurisdiction neither as to person nor property, the 
 imposition of a tax would be ultra vires and void. If the legislature 
 of a State should enact that the citizens or property of another State 
 or country should be taxed in the same manner as the persons and 
 property within its own limits and subject to its authority, or in any 
 other manner whatsoever, such a law would be as much a nullity as 
 if in conflict with the most explicit constitutional inhibition. Juris- 
 diction is as necessary to' valid legislative as to valid judicial action. 
 17
 
 258 MUST PERTAIN TO DISTRICT TAXED. 
 
 In the eye of the law personal property, for most purposes, has 
 no locality. Mobilia sequuntur personam; immobilia situm. Mobilia 
 non habent sequelam. In a qualified sense it accompanies the owner 
 wherever he goes, and he may deal with it and dispose of it accord- 
 ing to the law of his domicile. If he die intestate, that law, where- 
 soever the property may be situate, governs its disposal, and fixes 
 the rights and shares of the several distributees. (Story's Conflict 
 of Laws 379; Broom's Maxims, 501, 502; In re Ervin, 1 Cromp- 
 ton & Jervis 156.) But this doctrine is not allowed to stand in the 
 way of the taxing power in the locality where the property has its 
 actual situs, and the requisite legislative jurisdiction exists. Such 
 property is undoubtedly liable to taxation there in all respects as if 
 the proprietor were a resident of the same locality. (International 
 Life Ass. Co. v. Corns. 28 Barbour 318; Hoyt v. Corns. 23 Id. 228; 
 Story's Conflict of Laws, 550.) The personal property of a resident 
 at the place of his residence is liable to taxation, although he has no 
 intention to become domiciled there. (Finley v. Philadelphia 32 Pa. 
 St. 381.) Whether the personal property of a resident of one State 
 situate in another can be taxed in the former, is a question which 
 in this case we are not called upon to decide. (Wilson v. The 
 Mayor 4 E. D. Smith 675; Hoyt v. The Corns. 23 N. Y. 228.) 
 
 Upon looking into the enactments under which the taxes in ques- 
 tion were assessed, it is obvious that their purpose was not to tax the 
 property through the proprietor, but to tax the things themselves 
 by reason of their being "within the city." The point for us to de- 
 cide, therefore, is, whether they are covered by the legal provisions 
 under which the taxes were imposed. If the taxing officer acted 
 without authority the taxes were invalid, and the city is not entitled 
 to recover in this action. 
 
 The boats were enrolled at the city of St. Louis, but that throws 
 no light upon the subject of our inquiry. The act of 1789, section 
 2, and the act of 1792, section 3, (1 Stat. at Large, 55 and Ib. 287) 
 require every vessel to be registered in the district to which she be- 
 longs and the fourth section of the former act, and the third section 
 of the latter, declares that her home port shall be that at or near 
 which her owner resides. The solution of the question, where her 
 home port is, when it arises, depends wholly upon the locality of 
 her owner's residence, and not upon the place of her enrollment. (3 
 Kent, 133, 170, Hill v. The Golden Gate, Newberry 308; S. B. 
 Superior Ib. 181; Jordan v. Young 37 Me. 276.) 
 
 The court found that the boats, "when not in actual use, were
 
 LOAN SOCIETY V. MULTNOMAH CO. 259 
 
 laid up by the Illinois shore,, and were forbidden, by a general ordi- 
 nance of the city of St. Louis regulating ferries and ferry-boats, to 
 remain at the St. Louis wharf or landing longer than ten minutes 
 at a time." A tax was paid upon the boats in Illinois. Their rela- 
 tion to the city was merely that of contact there, as one of the ter- 
 mini of their transit across the river in the prosecution of their busi- 
 ness. The time of such contact .was limited by the city ordinance. 
 Ten minutes was the maximum of the stay they were permitted to 
 make at any one time. The owner was, in the eye of the law, a citi- 
 zen of that State, and from the inherent law of its nature could not 
 emigrate or become a citizen elsewhere. As the boats were laid up 
 on the Illinois shore when not in use, and the pilots and engineer? 
 who ran them lived there, that locality, under the circumstances must 
 be taken to be their home port. They did not so abide within tht: 
 city as to become incorporated with and form a part of its personal 
 property. (Hays v. Pac. Steamship Co. 17 Howard 599; City of 
 Albany v. Meekins 3 Ind. 481.) Hence they were beyond the juris- 
 diction of the authorities by which the taxes were assessed, and the 
 validity of the taxes cannot be maintained. (Railroad Co. v. Jack- 
 son, 7 Wallace, 262.) In our opinion the facts found are sufficient 
 to support the judgment. 
 
 Judgment affirmed. 
 
 See also Hays v. Pacific Mail Steamship Co. 17 How. 596; Morgan v. 
 Parham, 16 Wallace 477. 
 
 SAVINGS AND LOAN SOCIETY V. MULTNOMAH COUNTY. 
 
 Supreme Court of the United States. March, 1898. 
 169 United States, 421. 
 
 Mr. Justice GRAY delivered the opinion of the court. 
 This was a bill in equity filed in the Circuit Court of the United 
 States for the District of Oregon, by the Savings and Loan Society, 
 a corporation and citizen of the State of California, against Multno- 
 mah County, a public corporation in the State of Oregon, and one 
 Kelly, the sheriff and ex officio the tax collector of that county, and 
 a citizen of that State, showing that in 1891 and 1892 various per- 
 sons, all citizens of Oregon, severally made their promissory notes to 
 secure the payment of various sums of money, with interest, to the
 
 260 MUST PERTAIN TO DISTRICT TAXED. 
 
 plaintiff at its office in the City of San Francisco and State of Cali- 
 fornia, amounting in all to the sum of $531,000; and, to further 
 secure the same debts, executed to the plaintiff mortgages of divers 
 parcels of land owned by them in Multnomah County ; that the mort- 
 gages were duly recorded in the office of the recorder of conveyances 
 of that county; that the notes and mortgages were immediately de- 
 livered to the plaintiff, and had ever since been without the State 
 of Oregon, and in the possession of the plaintiff at San Francisco: 
 that afterwards, in accordance with the statute of Oregon of October 
 26, 1882, taxes were imposed upon all the taxable property in Mult- 
 nomah county, including the debts and mortgages aforesaid; that, 
 the taxes upon these debts and mortgages not having been paid, a 
 list thereof was placed in the hands of the sheriff, with a warrant 
 directing him to collect the same as upon execution, and he adver- 
 tised for sale all the debts and mortgages aforesaid; and that the 
 statute was in violation of the Fourteenth Amendment of the Con- 
 stitution of the United States, as depriving the plaintiff of its prop- 
 erty without due process of law, and denying to it the equal protec- 
 tion of the laws. The bill prayed for an injunction against the sale; 
 and for a decree declaring that the statute was contrary to the pro- 
 visions of the Constitution of the United States and therefore of no 
 effect, and that all the proceedings before set out were null and void ; 
 and for further relief. 
 
 The defendants demurred generally; and the court sustained the 
 demurrer, and dismissed the bill. 60 Fed. Rep. 31. The plaintiff 
 appealed to this court. 
 
 The ground upon which the plaintiff seeks to maintain this suit 
 is that the tax act of the State of Oregon of 1882, as applied to the 
 mortgages, owned and held by the plaintiff in California, of lands 
 in Oregon, is contrary to the Fourteenth Amendment of the Consti- 
 tution of the United States, as depriving the plaintiff of its prop- 
 erty without due process of law, and denying to it the equal protec- 
 tion of the laws. 
 
 The statute in question makes the following provisions for the tax- 
 ation of mortgages: By 1, "a mortgage, deed of trust, contract 
 or other obligation whereby land or real property, situated in no 
 more than one county in this State, is made security for the pay- 
 ment of a debt, together with such debt, shall, for the purposes of 
 assessment and taxation, be deemed and treated as land or real prop- 
 erty/' By 2, the mortgage, "together with such debt, shall be as- 
 sessed and taxed to the owner of such security and debt in the 
 county, city or district in which the land or real property affected by
 
 LOAN SOCIETY V. MULTXOMAH CO. " 261 
 
 such security is situated;" and may be sold, like other real property, 
 for the payment of taxes due thereon. By 3, that person is to be 
 deemed the owner, who appears to be such on the record of the mort- 
 gage, either as the original mortgagee, or as an assignee by transfer 
 made in writing upon the margin of the record. By 4, no payment 
 on the debt so secured is to be taken into consideration in assessing 
 the tax, unless likewise stated upon the record; and the debt and 
 mortgage are to be assessed for the full amount appearing by the 
 record to be owing, unless in the judgment of the assessor the land 
 is not worth so much, in which case they are to be assessed at their 
 real cash value. By 5, 6, 7, it is made the duty of each county 
 clerk to record, in the margin of the record of any mortgage, when 
 requested so to do by the mortgagee or owner of the mortgage, all 
 assignments thereof and payments thereon; and to deliver annually 
 to the assessor abstracts containing the requisite information as to 
 unsatisfied mortgages recorded in his office. By 8, a debt secured 
 by mortgage of land in a county of this State "shall, for the pur- 
 pose of taxation, be deemed and considered as indebtedness within 
 this State, and the person or persons owing such debt shall be en- 
 titled to deduct the same from his or their assessments in the same 
 manner that other indebtedness within the State is deducted." 
 
 The statute applies only to mortgages of land in not more than 
 
 one county The mortgages now in question were all 
 
 made since the statute, and were of land in a single county ; and 
 it is not suggested in the bill that there existed any untaxed mort- 
 gage of lands in more than one county. 
 
 The statute, in terms, provides that "no promissory note or other 
 instrument in writing, which is the evidence of" the debt secured by 
 the mortgage, "shall be taxed for any purpose within this State;'* 
 but that the debt and mortgage "shall, for the purposes of assess- 
 ment and taxation, be deemed and treated as land or real property" 
 in the county in which the land is situated, and be there taxed, not 
 beyond their real cash value, to the person appearing of record to 
 be the owner of the mortgage. 
 
 The statute authorizes the amount of the mortgage debt to be de* 
 ducted from any assessment upon the mortgagor; and does not pro- 
 vide for both taxing to the mortgagee the money secured by the 
 mortgage, and also taxing to the mortgagor the whole mortgaged 
 property, as did the statutes of other States, the validity of which 
 was affirmed in Augusta Bank v. Augusta, 36 Maine, 255, 259 ; Ala-
 
 262 MUST PERTAIN TO DISTRICT TAXED. 
 
 bama Ins. Co. v. Lott, 54 Alabama, 499 ; Appeal Tax Court v. Rice, 
 50 Maryland, 302; and Goldgart v. People, 106 Illinois, 25. 
 
 The right to deduct from his assessment any debts due from him 
 within the State is secured as well to the mortgagee, as to the mort- 
 gagor, by a provision of the statute of Oregon of October 25, 1880, 
 (unrepealed by the statute of 1882, and evidently assumed by 8 
 of this statute to be in force), by which "it shall be the duty of the 
 assessor, to deduct the amount of indebtedness, within the State, of 
 any person assessed, from the amount of his or her taxable property." 
 Oregon Laws of 1880, p. 52 ; Hill's Code, 2752. 
 
 Taking all the provisions of the statute into consideration, its 
 clear intent and effect are as follows: The personal obligation of 
 the mortgagor to the mortgagee is not taxed at all. The mortgage 
 and the debt secured thereby are taxed, as real estate, to the mort- 
 gagee, not beyond their real cash value and only so far as they rep- 
 resent an interest in the real estate mortgaged. The debt is not 
 taxed separately, but only together with the mortgage; and is con- 
 sidered as indebtedness within the State for no other purpose than 
 to enable the mortgagor to deduct the amount thereof from the as- 
 sessment upon him, in the same manner as other indebtedness within 
 the State is deducted. And the mortgagee, as well as the mort- 
 gagor, is entitled to have deducted from his assessment the amount 
 of his indebtedness within the State. 
 
 The result is that nothing is taxed but the real estate mortgaged, 
 the interest of the mortgagee therein being taxed to him, and the 
 rest to the mortgagor. There is no double taxation. Nor is any 
 such discrimination made between mortgagors and mortgagees, or 
 between resident and non-resident mortgagees, as to deny to the 
 latter the equal protection of the laws. 
 
 The case, then, reduces itself to the question whether this tax act, 
 as applied to mortgages owned by citizens of other States and their 
 possession outside of the State of Oregon, deprives them of their 
 property without due process of law. 
 
 By the law of Oregon, indeed, as of some other States of the 
 Union, a mortgage of real property does not convey the legal title 
 to the mortgagee, but creates only a lien or incumbrance as security 
 for the mortgage debt; and the right of possession, as well as the 
 legal title, remains in the mortgagor, both before and after condition 
 broken, until foreclosure. Oregon General Laws of 1843-1872, 323 ; 
 Hill's Code, 326; Anderson v. Baxter, 4 Oregon 105, 110; Sem- 
 ple v. Bank of British Columbia, 5 Sawyer 88, 394; Teal v. Walker,
 
 LOAN SOCIETY V. MULTNOMAH CO. 2ii3 
 
 111 U. S. 242; Sellwood v. Gray, 11 Oregon 534; Watson v. Dun- 
 dee Mortgage Co., 12 Oregon 474 ; Thompson v. Marshall, 21 Oregon 
 171; Adat'r v. Adair, 22 Oregon 115. 
 
 Notwithstanding this, it has been held, both by the Supreme 
 Court of the State, and by the Circuit Court of the United States 
 for the District of Oregon, that the State has the power to tax mort- 
 gages, though owned and held by citizens and residents of other 
 States, of lands in Oregon. Mumford v. Sew ell, 11 Oregon 67; 
 Dundee Mortgage Co. v. School District, 10 Sawyer 52; Crawford 
 v. Linn County, 11 Oregon 482; Dundee Mortgage Co. v. Parrish, 
 11 Sawyer 92; Poppleton v. Yamhill County, 18 Oregon 377, 383; 
 Savings & Loan Society v. Multnomah County, 60 Fed. 31. 
 
 The authority of every State to tax all property, real and per- 
 sonal, within its jurisdiction, is unquestionable. McCulloch v. Mary- 
 land, 4 Wheat. 316, 429. Personal property, as this court has de- 
 clared again and again, may be taxed, either at the domicil of its 
 owner, or at the place where the property is situated, even if the 
 owner is neither a citizen nor a resident of the State which imposes 
 the tax. Tappan v. Merchants' Bank, 19 Wall. 490, 499; State 
 Railroad Tax cases, 92 U. S. 575, 607; Coe v. Errol, 116 U. S. 517, 
 524; Pullmans Car Co. v. Pennsylvania, 141 U. S. 18, 22, 27. The 
 State may tax real estate mortgaged, as it may all other property 
 within its jurisdiction, at its full value. It may do this, either by 
 taxing the whole to the mortgagor, or by taxing to the mortgagee 
 the interest therein represented by the mortgage, and to the mort- 
 gagor the remaining interest in the land. And it may, for the pur- 
 poses of taxation, either treat the mortgage debt as personal prop- 
 erty, to be taxed, like other choses in action, to the creditor at his 
 domicil; or treat the mortgagee's interest in the land as real estate, 
 to be taxed to him, like other real property, at its situs. Firemen's 
 Ins. Co. v. Commonwealth, 137 Mass. 80, 81; State v. Runyon, 12 
 Vroom, (41 N. J. Law), 98, 105; Darcy v. Darcy, 22 Vroom, (51 N. 
 J. Law), 140, 145; People v. Smith, 88 N. Y. 576, 585; Common 
 Council v. Assessors, 91 Michigan 78, 92. 
 
 The plaintiff much relied on the opinion delivered by Mr. Justice 
 Field in Cleveland, Painesville & Ashtabula Railroad v. Pennsyl- 
 vania, reported under the name of Case of the State Tax on For- 
 eign-Held Bonds, 15 Wall. 300, 323. It becomes important there- 
 fore to notice exactly what was there decided. In that case, a rail- 
 road company, incorporated both in Ohio and in Pennsylvania, had 
 issued bonds secured by a mortgage of its entire road in both
 
 264 MUST PERTAIN TO DISTRICT TAXED. 
 
 States; and the tax imposed by the State of Pennsylvania, which 
 was held by a majority of this court to be invalid, was a tax upon 
 the interest due to the bondholders upon the bonds, and was not a 
 tax upon the railroad, or upon the mortgage thereof, or upon the 
 bondholders solely by reason of their interest in that mortgage. The 
 remarks in the opinion, supported by quotations from opinions of the 
 Supreme Court of Pennsylvania, that a mortgage, being a mere se- 
 curity for the debt, confers upon the holder of the mortgage no in- 
 terest in the land, and when held by a non-resident is as much be- 
 yond the jurisdiction of the State as the person of the owner, went 
 beyond what was required for the decision of the case, and cannot 
 be reconciled with other decisions of this court and of the Supreme 
 Court of Pennsylvania. 
 
 This court has always held that a mortgage of real estate, made 
 in good faith by a debtor to secure a private debt, is a conveyance 
 of such an interest in the land, as will defeat the priority given to 
 the United States by act of Congress in the distribution of the 
 debtor's estate. United States v. Hooe, 3 Cranch 73; Thelusson v. 
 Smith, 2 Wheat. 396, 426; Conard v. Atlantic Ins. Co., 1 Pet. 386, 
 441. 
 
 
 
 In Kirtland v. HotchTciss, 42 Conn. 426, affirmed by this court in 
 100 U. S. 491, the point adjudged was that debts to persons residing 
 ,. in one State, secured by mortgage of land in another State, might, 
 for the purposes of taxation, be regarded as situated at the domicile 
 ^\ of the creditor. But the question, whether the mortgage could be 
 "4- taxed there only, was not involved in the case, and was not decided, 
 either by the Supreme Court of Connecticut or by this court. 
 
 In many other cases cited by the appellant, there was no statute 
 expressly taxing mortgages at the situs of the land; and, although 
 the opinions in some of them took a wider range, the only question 
 in any of them was one of the construction, not of the constitution- 
 ality, of a statute of the intention, not of the power of the legis- 
 lature. Such were: Davenport v. Mississippi & Missouri Railroad, 
 12 Iowa 539; Latrobe v. Baltimore, 19 Maryland 13; People v. 
 Eastman, 25 California 601; State v. Earl, I Nevada 394; Arapa- 
 hoe v. Cutter, 3 Colorado 349; People v. Smith, 88 N. Y. 576; 
 Grant v. Jones, 39 Ohio St. 506 ; State v. Smith, 68 Mississippi 79 ; 
 Holland v. Silver Bow Commissioners, 15 Montana 460. 
 
 The statute of Oregon, the constitutionality of which is now 
 drawn in question, expressly forbids any taxation of the promissory 
 note, or other instrument of writing, which is the evidence of the
 
 NEW ORLEANS V. STEMPEL. 265 
 
 debt secured by the mortgage; and, with equal distinctness,' pro- 
 vides for the taxation, as real estate, of the mortgage interest in the 
 land. Although the right which the mortgage transfers in the land 
 covered thereby is not the legal title, but only an equitable interest 
 and by way of security for the debt, it appears to us to be clear 
 upon principle, and in accordance with the weight of authority, that 
 this interest, like any other interest legal or equitable, may be taxed 
 to its owner (whether resident or non-resident) in the State where 
 the land is situated, without conkavening any provision of the Con- 
 stitution of the United States. 
 
 Decree affirmed. 
 
 Mr. Justice HARLAN and Mr. Justice WHITE dissented. 
 
 Mr. Justice McKENNA, not having been a member of the court 
 when this case was argued, took no part in the decision. 
 
 NEW ORLEANS V. STEMPEL. 
 
 Supreme Court of the United States. October, 1899. 
 175 United States 309. 
 
 This case came on appeal from the Circuit Court of the United 
 States for the Eastern District of Louisiana. It is a suit brought 
 by the appellee to restrain the collection of taxes levied upon certain 
 personal property which she claims was exempt from taxation. The 
 important facts are these: The plaintiff, as well as the infants 
 whose guardian she is, and for whose benefit she brings this suit, 
 are residents of the State of New York, in which State she has been 
 duly appointed the guardian of their estates. The infants inherited 
 certain property from their grandfather, a resident of Louisiana, 
 whose estate was duly settled in the proper court of that State. By 
 regular proceedings these infants had been adjudged his legal heirs, 
 and she, as guardian, had been put in possession of their property 
 thus inherited. The order of the court, in this respect, was rend- 
 ered February 14, 1896, and the taxes which were sought to be re- 
 strained were those of that year. The assessment, as appears by the 
 assessment roll, was in the name of "the estate of D. C. McCan;" 
 was of $15,000, "money in possession, on deposit, or in hand," and 
 of $800,000, "money loaned on interest, all credits and all bills re- 
 ceivable, for money loaned or advanced, or for goods sold; and all 
 credits of any and every description." The principal contentions of
 
 266 MUST PERTAIN TO DISTRICT TAXED. 
 
 the plaintiff were: First, that included within this personal prop- 
 erty was some $228,000 of the bonds of the State of Louisiana, tax- 
 ation of which by the State or any of its municipalities was void, as 
 impairing the obligation of a contract made by the State. Second, 
 that the situs of the loans and credits was in New York, the place 
 of residence of the guardian and wards, and, therefore, being loans 
 and credits without the State of Louisiana they were not subject to 
 taxation therein. 
 
 Mr. Justice BREWER, after making the above statement, delivered 
 the opinion of the court. 
 
 The important question is whether the property was subject to tax- 
 ation. With regard to the contention that certain bonds were in- 
 cluded in the assessment which were not subject to taxation on ac- 
 count of the supposed contract of the State of Louisiana, it is suffi- 
 cient to say that the assessment does not purport to include any 
 bonds. 
 
 Under the circumstances disclosed by the testimony, were the 
 money and credits subject to taxation? It appears that these credits 
 were evidenced by notes largely secured by mortgages on real estate 
 in New Orleans; that these notes and mortgages were in the city 
 of New Orleans, in possession of an agent of the plaintiff, who col- 
 lected the interest and principal as it became due and deposited the 
 same in a bank in New Orleans to the credit of the plaintiff. The 
 question, therefore, is distinctly presented, whether, because the own- 
 ers were domiciled in the State of New York, the moneys so depos- 
 ited in a bank within the limits of the State of Louisiana, and the 
 notes secured by mortgages situated and held as above described, 
 were free from taxation in the latter State. Of course, there must 
 be statutory warrant for such taxation, for if the legislature omits 
 any property from the list of taxables the courts are not authorized 
 to correct the omissions and adjudge the omitted property to be 
 subject to taxation. 
 
 From this review of the decisions of the Supreme Court of the 
 State it is obvious that moneys, such as those referred to, collected 
 as principal and interest of notes, mortgages and other securities 
 kept within the State and deposited in one of the banks of the State 
 for use or reinvestment, are taxable under the act of 1890. 
 
 When the question is whether property is exempt from taxation,
 
 NEW ORLEANS V. STEMPEL. 26? 
 
 and that exemption depends alone on the true construction of a stat- 
 ute of the State, the Federal courts should be slow to declare an ex- 
 emption in advance of any decision by the courts of the State. The 
 rule in such a case is that the Federal courts follow the construction 
 placed upon the statute by the state courts, and in advance of such 
 construction they should not declare property beyond the scope of 
 the statute and exempt from taxation unless it is clear that such is 
 the fact. In other words, they should not release any property 
 within the State from its liability to state taxation unless it is ob- 
 vious that the statutes of the State warrant such exemption, or un- 
 less the mandates of the Federal Constitution compel it. 
 
 If we look to the decisions of the other States we find the fre- 
 quent ruling that when an indebtedness has taken a concrete form 
 and become evidenced by note, bill, mortgage or other written in- 
 strument, and that written instrument evidencing the indebtedness 
 is left within the State in the hands of an agent of the non-resident 
 owner, to be by him used for the purposes of collection and deposit 
 or reinvestment within the State, its taxable situs is in the State. 
 See Catlin v. Hull, 21 Vermont 152, in which the rule was thus an- 
 nounced (pages 159, 161) : 
 
 With reference to the decisions of this court it may be said that 
 there has never been any denial of the power of a State to tax securi- 
 ties situated as these are, while there have been frequent recogni- 
 tions of its power to separate for purposes of taxation the situs of 
 personal property from the domicil of the owner. 
 
 This matter of situs may be regarded in another aspect. In the 
 absence of statute, bills and notes are treated as choses in action and 
 are not subject to levy and sale on execution, but by the statutes of 
 many States, they are made so subject to seizure and sale, as any 
 tangible personal property. I Freeman on Executions, sec. 112; 4 
 Am. & Eng. E. of L., 2d ed. 282; 11 Am. & Eng. E. of L., 2d ed. 
 623. Among the States referred to in these authorities as having 
 statutes warranting such levy and sale are California, Indiana, Ken- 
 tucky, New York, Tennessee, Iowa, and Louisiana 
 
 Now if property can have such a situs within the State as to be 
 subject to seizure and sale on execution, it would seem to follow 
 that the State has power to establish a like situs within the State 
 for the purpose of taxation 
 
 It is well settled that bank bills and municipal bonds are in such 
 a concrete tangible form that they are subject to taxation where
 
 268 MUST PERTAIN TO DISTRICT TAXED. 
 
 found, irrespective of the domicil of the owner; are subject to levy 
 and sale on execution, and to seizure and delivery under replevin; 
 and yet they are but promises to pay evidences of existing indebt- 
 edness. Notes and mortgages are of the same nature; and while 
 they may not have become so generally recognized as tangible per- 
 sonal property, yet they have such a concrete form that we see no 
 reason why a State may not declare that if found within its limits 
 they shall be subject to taxation. 
 
 It follows from these considerations that 
 
 The decree of the Circuit Court must be reversed and the case 
 remanded for further proceedings. 
 
 Mr. Justice HARLAN and Mr. Justice WHITE dissented. 
 
 KIRTLAND V. HOTCHKISS. 
 
 Supreme Court of the United States. October, 1879. 
 100 United States 491 
 
 Charles W. Kirtland, a citizen of Connecticut, instituted this ac- 
 tion for the purpose of restraining the enforcement of certain tax- 
 warrants levied upon his real estate in the town in which he re- 
 sided, in satisfaction of certain State taxes, assessed against him for 
 the years 1869 and 1870. The assessment was by reason of his 
 ownership, during those years, of certain bonds, executed in Chicago, 
 and made payable to him, his executors, administrators, or assigns 
 in that city, at such place as he or they should by writing appoint, 
 and, in default of such appointment, at the Manufacturers' National 
 Bank of Chicago. Each bond declared that "it is made under, and 
 is, in all respects, to be construed by the laws of Illinois, and is 
 given for an actual loan of money, made at the city of Chicago, by 
 the said Charles W. Kirtland to the said Edwin A. Cummins, on the 
 day of the date hereof." They were secured by deeds of trust, exe- 
 cuted by the obligor to one Perkins, of that city, upon real estate 
 therein situated, the trustees having power by the terms of that deed 
 to sell and convey the property and apply the proceeds in payment 
 of the loan, in case of default on the part of the obligor to perform 
 the stipulations of the bond. 
 
 The statute of Connecticut, under which the assessment was made, 
 declares, among other things, that personal property in that State "or 
 elsewhere" should be deemed for purposes of taxation, to include all 
 moneys, credits, choses in action, bonds, notes, stocks (except United
 
 KIRTLAND V. HOTCHKISS. 269 
 
 States stocks), chattels or effects, or any interest thereon; and that 
 such personal property or interest thereon, being the property of any 
 person resident in the State, should be valued and assessed at its just 
 and true value in the tax-list of the town where the owner resides. 
 The statute expressly exempts from its operation money or property 
 actually invested in the business of merchandizing or manufacturing, 
 when located out of the State. Conn. Revision of 1866, p. 709, tit. 
 64, c. 1, sect. 8. 
 
 The court below held that the assessments complained of were in 
 conformity to the State law, and that the law itself did not infringe 
 any constitutional right of the plaintiff. 
 
 This writ of error is prosecuted by Kirtland upon the ground, 
 among others, that the statute of Connecticut thus interpreted and 
 sustained is repugnant to the Constitution of the United States. 
 
 Mr. Justice HARLAN, after stating the case, delivered the opinion 
 of the court. 
 
 We will not follow the interesting argument of counsel by enter- 
 ing upon an extended discussion of the principles upon which the 
 power of taxation rests under our system of constitutional govern- 
 ment. Nor is it at all necessary that we should now attempt to 
 state all limitations which exist upon the exercise of that power, 
 whether they arise from the essential principles of free government 
 or from express constitutional provisions. We restrict our remarks 
 to a single question, the precise import of which will appear from 
 the preceding statement of the more important facts of this case. 
 
 In McCulloch v. State of Maryland, (4 Wheat. 428), this court" 
 considered very fully the nature and extent of the original right 
 of taxation which remained with the States after the adoption of 
 the Federal Constitution. It was there said "that the power of 
 taxing the people and their property is essential to the very exist- 
 ence of government, and may be legitimately exercised on the ob- 
 jects to which it is applicable to the utmost extent to which the 
 government may choose to carry it." Tracing the right of taxation 
 to the source from which it was derived, the court further said: 
 "It is obvious that it is an incident of sovereignty, and is coexten- 
 sive with that to which it is an incident. All 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 princi- 
 ples, exempt from taxation." 
 
 "This vital power," said this court in Providence Banff \. Bill- 
 ingx, (4 Pet. 563), "may be abused; but the Constitution of the 
 United States was not intended to furnish the corrective for every
 
 270 MUST PERTAIN TO DISTRICT TAXED. 
 
 abuse of power which may be committed by the State governments. 
 The interest, wisdom, and justice of the representative body, and its 
 relations with its constituents, furnish the only security, when there 
 is no express contract, against unjust and excessive taxation, as well 
 as against unwise legislation." 
 
 In St. Louis v. The Ferry Company, (11 Wall. 423), and in 
 State Tax on Foreign-held Bonds, (15 id. 300), the language of 
 the court was equally emphatic. 
 
 In the last named case we said that "unless restrained by pro- 
 visions of the Federal Constitution, 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." 
 
 We perceive no reason to modify the principles announced in 
 these cases or to question their soundness. They are fundamental 
 and vital in the relations which, under the Constitution, exist be- 
 tween the United States and the several States. Upon their strict 
 observance depends, in no small degree, the harmonious and suc- 
 cessful working of our complex system of government, Federal and 
 State. It may, therefore, be regarded as the established doctrine of 
 this court, that so long as the State, by its laws, prescribing the 
 mode and subjects of taxation, does not entrench upon the legiti- 
 mate authority of the Union, or violate any right recognized, or 
 secured, by the Constitution of the United States, this court, as 
 between the State and its citizen, can afford him no relief against 
 State taxation, however unjust, oppressive, or onerous. 
 
 Plainly, therefore, our only duty is to inquire whether the Con- 
 stitution prohibits a State from taxing, in the hands of one of its 
 resident citizens, a debt held by him upon a resident of another 
 State, and evidenced by the bond of the debtor, secured by deed of 
 trust or mortgage upon real estate situated in the State in which 
 the debtor resides. 
 
 The question does not seem to us to be very difficult of solution. 
 The creditor, it is conceded, is a permanent resident within the 
 jurisdiction of the State imposing the tax. The debt is property in 
 his hands constituting a portion of his wealth, from which he is 
 under the highest obligation, in common with his fellow-citizens of 
 the same State, to contribute for the support of the government 
 whose protection he enjoys. 
 
 That debt, although a species of intangible property, may, for 
 purposes of taxation, if not for all others, be regarded as situated 
 at the domicile of the creditor. It is none the less property because 
 its amount and maturity are set forth in a bond. That bond,
 
 KIRTLAND V. HOTCHKISS. 271 
 
 wherever actually held or deposited, is only evidence of the debt, 
 and if destroyed, the debt the right to demand payment of the 
 money loaned, with the stipulated interest remains. Nor is the 
 debt, for purposes of taxation, affected by the fact that it is secured 
 by mortgage upon real estate situated in Illinois. The mortgage is 
 but a security for the debt, and, as held in State Tax on Foreign- 
 held Bonds (supra), the right of the creditor "to proceed against 
 the property mortgaged, upon a given contingency, to enforce by 
 
 its sale the payment of his demand, has no locality 
 
 independent of the party in whom it resides. It may undoubtedly 
 be taxed by the State when held by a resident therein," &c. Cooley 
 on Taxation, 15, 63, 134/270. The debt, then, having its situs at 
 the creditor's residence, both he and it are, for the purposes of tax- 
 ation, within the jurisdiction of the State. It is, consequently, for 
 the State to determine, consistently with its own fundamental law, 
 whether such property owned by one of its residents shall contrib- 
 ute, by way of taxation, to maintain its government. Its discretion 
 in that regard cannot be supervised or controlled by any depart- 
 ment of the Federal government, for the reason, too obvious to re- 
 quire argument for its support, that such taxation violates no pro- 
 vision of the Federal Constitution. Manifestly it does not, as is 
 supposed by counsel, interfere in any true sense with the exercise 
 by Congress of the power to regulate commerce among the several 
 States. Nathan v. Louisiana, 8 How. 73; Cooley on Taxation, 62. 
 Xor does it, as is further supposed, abridge the privileges or im- 
 munities of citizens of the United States, or deprive the citizens of 
 life, liberty or property without due process of law, or violate the 
 constitutional guaranty that the citizens of each State shall be en- 
 titled to all privileges of citizens in the several States. 
 
 Whether the State of Connecticut shall measure the contribution 
 which persons resident within its jurisdiction shall make by way 
 of taxes, in return for the protection it affords them, by the value 
 of the credits, choses in action, bonds or stocks which they may 
 own (other than such as are exempted or protected from taxation 
 under the Constitution and laws of the United States), is a matter 
 which concerns only the people of that State, with which the Fed- 
 eral government cannot rightly interfere. 
 
 Judgment affirmed.
 
 272 MUST PERTAIN TO DISTRICT TAXED. 
 
 MILLER V. PENNSYLVANIA. 
 
 Supreme Court of Pennsylvania. November, 1885. 
 Ill Pennsylvania State 321. 
 
 Mr. Justice GREEN delivered the opinion of the court, January 
 4th, 1886. 
 
 The third clause of the will of David Richey is undoubtedly a 
 positive and peremptory order to his executors to sell all of the 
 real estate in question in this case. All of the numerous legacies 
 which are given by the following clauses of the will are payable in 
 money out of the proceeds of the property sold under the direction 
 contained in the third clause. Under all the decisions it cannot be 
 questioned that the third clause of the will operated a conversion 
 of the residuary real estate into personalty efficacious from the 
 moment of the testator's death 
 
 Had there been a mere discretion to sell, as was the case in Dray- 
 ton's Appeal, 11 P. F. S. 172, we should have felt bound to hold 
 there was no conversion, and that as the land was situated in an- 
 other State it would not be subject to collateral inheritance tax, as 
 was decided in Commonwealth v. Coleman, 2 P. F. S. 468. But 
 as the order to sell was absolute, and worked a conversion which 
 was not affected by a permission to convey parts of the land in sat- 
 isfaction of legacies, we have no choice to regard it other than per- 
 sonalty. As such, it must be regarded as passing by the law of 
 the domicile, and hence subject to the tax 
 
 We cannot regard as of any efficacy the contention that conver- 
 sion is to be considered only for the specific purpose of paying lega- 
 cies, and that for all other purposes the real estate must be treated 
 as such. 
 
 It is the legacies themselves that are subject to the tax. As these 
 legacies pass to the legatees only in the form of money, we cannot 
 regard them as other than personalty. If any of the real estate 
 should be conveyed to legatees in satisfaction of their legacies, it 
 would only be as a substituted equivalent for the pecuniary sun 
 
 of the legacies. ' 
 
 Judgment affirmed.
 
 HANDLEY'S ESTATE. 273 
 
 HANDLEY'S ESTATE. 
 
 Supreme Court of Pennsylvania. February, 1897. 
 181 Pennsylvania State 339. 
 
 Opinion by Mr. Justice MITCHELL. 
 
 The first and most important question in this case is the liability 
 of testator's lands in Virginia to assessment for collateral inheri- 
 tance tax. The effort of a state to impose a tax which must in 
 effect come out of land beyond its boundaries, however indirect or 
 ingenious the mode of exaction, has always been a matter of very 
 questionable jurisdiction. It is universally conceded that the tax 
 cannot be laid directly, and nowhere is this rule stated more posi- 
 tively than in our own cases. See Bittinger's Estate, 129 Pa. 338; 
 Com. v. Coleman's Admr., 52 Pa. 468; Drayton's Appeal, 61 Pa. 
 172. 'And the collateral inheritance tax, being a tax on the prop- 
 erty passing from the decedent, and not a mere succession duty im- 
 posed on the recipient (Bittinger's Est., supra), is within the de- 
 fect of power to impose it on land outside of the state. 
 
 The border line however is reached when property which is in 
 fact real estate is to be treated as personalty under the doctrine of 
 equitable conversion. On this subject two different views have been 
 entertained by different courts. In Custance v. Bradshaw, 4 Hare 
 315, land was held by a partnership, and the interest of one part- 
 ner who had died was sold to another partner. It was claimed that 
 this interest was personalty and liable to probate duty. But Vice 
 Chancellor Wigram held that conversion being an equitable fiction 
 would only be carried to the extent necessary to accomplish the 
 equitable result aimed at, and "would not alter the nature of the 
 property for the purpose only of subjecting it to fiscal claims to 
 which at law it was not liable in its existing state." More recent 
 English cases have somewhat modified this decision so far as re- 
 lates to land held by partners for partnership purposes. See Dos 
 Passes on Inheritance Tax Law, Sec. 46b, and 32 Am. Law Reg. 
 X. S. 474, note by Mr. Howard W. Page. But the Court of Ap- 
 peals of New York adopted the same view as late as 1893. Matter 
 >.f Swiff s Estate, 137 X. Y. 77; and Matter of Curtis' Est., 142 
 X. Y. 219, where it is said, "it was never intended by the law to 
 tax a theory having no real substance behind it," and quoting 
 Swift's Est., supra, "the question of taxation is one of fact, and 
 cannot turn on theories or fiction." 
 
 In Pennsylvania, however, the other view was taken in Miller v. 
 18
 
 274 MUST PERTAIN TO DISTRICT TAXED. 
 
 Com., Ill Pa. 321, where it was held that, as the testator had per- 
 emptorily directed a sale of the land and a distribution of the pro- 
 ceeds, the doctrine of conversion applied, and the actual situs of the 
 land was immaterial, as what passed under the will was not the 
 land but the proceeds, which were personalty and liable to the tax. 
 The same rule was followed in Williamsons Est., 153 Pa. 508. 
 These cases rest on the basis that the testator intended and directed 
 not a merely nominal or limited conversion but an actual conversion 
 by sale, and the blending of the proceeds with his other personalty 
 for purposes of administration under his will. The action of the 
 court in dating such conversion from the instant of death was but 
 the application of the general rule that what is to be done is to be 
 treated in equity as done already. Though this argument is se- 
 verely technical, and therefore questionable in regard to jurisdic- 
 tion to tax land in fact situated in another state, yet it has the 
 merit of being unanswerably logical if the premise be once accepted. 
 This court has followed the argument unswervingly to its logical 
 conclusion, even when the result seemed contrary to the expres? 
 legislative policy of the state. Thus in Coleman's Est., 159 Pa. 231, 
 where land in Pennsylvania was owned by a testator in New York 
 whose will made an equitable conversion, the logical corollary of 
 Miller v. Com. was accepted and the land was held to have become 
 personalty and to follow the owner's domicile, and therefore not to 
 be taxable here. 
 
 All our cases agree that the status of the property at the instant 
 of death must govern the question of tax, both as to liability and 
 amount. Draytons App. 61 Pa. 172; Mellon s App. 114 Pa. 564; 
 Williamson's Est., 153 Pa. 508, 521. Where, therefore, the con- 
 version is not imperative, but only permissive and rests in the dis- 
 cretion of the executors or others, it does not become operative un- 
 til the exercise of the discretion, and in the meantime the land re- 
 tains its normal character. Drayton's Appeal, supra; Miller v. 
 Com., Ill Pa. 321. 
 
 For the same reasons, where the conversion though imperative is 
 not in presenti but in futuro, it goes into effect only from the hap- 
 pening of the stipulated contingency. This brings us to the exact 
 question now before us, and we find it expressly decided in the last 
 case on the subject. Bale's Est., 161 Pa. 181. The testator left 
 lands in Missouri to his wife for her life, and upon her death, di- 
 rected his executors to sell them and invest the proceeds in mort- 
 gages in St. Louis and pay the income therefrom to collaterals. It 
 was held by the orphan's court of Philadelphia that the proceeds
 
 MATTER OF SWIFT. 275 
 
 were not taxable and the decision was affirmed. The auditing judge 
 put his conclusion directly on the postponement of the conversion, 
 and though the court in bane referred to the additional circum- 
 stance that the proceeds were to be invested in mortgages in St. 
 Louis, yet it is clear that that was not a material point in the 
 ratio decidendi. Mortgages, no matter what the situs of the land" 
 pledged, are personal property, and if the conversion had been im- 
 mediate, no direction as to the investment of the proceeds could 
 have exempted them from the tax. The ground of the decision, 
 which is the logical result of the principles adopted in all the pre- 
 ceding cases, is that the tax is assessable at the instant of death, and 
 where the conversion is not referable to that same instant, as where 
 it is to take place only in the discretion of the executors, or a for- 
 tiori where it is postponed by the express direction of the testator, 
 the land in the meantime retains its real character, and being out- 
 side the state is not subject to taxation. 
 
 In the present case the testator postponed the sale for twenty 
 years, and there was therefore no conversion when the tax upon 
 the estate accrued. The assignments of error to the tax on the 
 lands in Virginia and West Virginia are therefore sustained. 
 
 The decree is reversed and the appraisement directed to be re- 
 adjusted on the principles herein stated. 
 
 MATTER OF SWIFT. 
 
 Court of Appeals of New York. January, 189S. 
 137 New York 77. 
 
 GRAY, J. James T. Swift died in July, 1890; being a resident 
 of this state and leaving a will, by which he made a disposition of 
 all his property among relatives. After many legacies of money and 
 various articles of personal property, he directed a division of his 
 residuary estate into four portions, and he devised and bequeathed 
 one portion to each of four persons named. The executors were 
 given a power of sale for the purpose of paying the legacies and of 
 making the distribution of the estate. At the time of his death, 
 the testator's estate included certain real estate and tangible per- 
 sonal property in chattels, situated within the state of New Jersey, 
 which were realized upon by the executors and converted into
 
 276 MUST PERTAIN TO DISTRICT TAXED. 
 
 moneys in hand. When, upon their application, an appraisement 
 was had of the estate, in order to fix its value under the require- 
 ments of the law taxing gifts, legacies and inheritances, the surro- 
 gate of the county of New York, before whom the matter came, 
 held, with respect to the appraisement, that the real and personal 
 property situated without the state of New York were not subject 
 to appraisal and tax under the law, and the exceptions taken by the 
 comptroller of the city of New York to that determination raise the 
 first and the principal question which we shall consider. 
 
 Surrogate Ransom's opinion, which is before us in the record, 
 contains a careful review of the legal principles which limit the 
 right to impose the tax, and his conclusions are as satisfactory to 
 my mind, as they evidently were to the minds of the learned jus- 
 tices of the General Term of the Supreme Court, who agreed in 
 affirming the surrogate's decree upon his opinion. 
 
 The question here does not relate to the power of the state to 
 tax its residents with respect to the ownership of property situated 
 elsewhere. That question is not involved. The question is 
 whether the legislature of the state, in creating this system of tax- 
 ation of inheritances, or testamentary gifts, has not fixed as the 
 standard of right the property passing by will, or by the intestate 
 laws. 
 
 The effect of this special tax is to take from the property a por- 
 tion or percentage of it, for the use of the state, and I think it 
 quite immaterial whether the tax can be precisely classified with a 
 taxation of property or not. It is not a tax upon persons. If it 
 is called a .tax upon the succession to the ownership of property ; 
 still it relates to and subjects the property itself, and when that 
 is without the jurisdiction of the state, inasmuch as the succession 
 is not of property within the dominion of the state, succession to it 
 cannot be said to occur by permission of the state. As to lands 
 this is clearly the case, and rights in or power over them are de- 
 rived from or through the laws of the foreign state or country. As 
 to goods and chattels it is true; for their transmission abroad is 
 subject to the permission of and regulated by the laws of the state 
 or country where actually situated. Jurisdiction over them belongs 
 to the courts of that state or country for all purposes of policy, 
 or of administration in the interests of its citizens, or of those hav- 
 ing enforceable rights, and their surrender, or transmission, is upon 
 principles of comity.
 
 MATTEE OF SWIFT. 277 
 
 When succession to the ownership of property is by the permis- 
 sion of the state, then the permission can relate only to property 
 over which the state has dominion and as to which it grants the 
 privilege or permission. 
 
 Xor is the argument available that, by the power of sale conferred 
 upon the executors, there was an equitable conversion worked of the 
 lands in Xew Jersey, as of the time of the testator's death, and, 
 hence, that the property sought to be reached by the tax, in, the 
 eye of the law, existed as cash in this state in the executor's hands, 
 at the moment of the testator's death. There might be some doubt 
 whether the main proposition in the argument is quite correct and 
 whether the land did not vest in the residuary legatees, subject 
 to the execution of the power of sale. But it is not necessary to 
 decide that question. Neither the doctrine of equitable conversion 
 of lands, nor any fiction of situs of movables can have any bearing 
 upon the question under advisement. The question of the juris- 
 diction of the state to tax is one of fact and cannot turn upon 
 theories or fiction; which, as it has been observed, have no place 
 an a well adjusted system of taxation. 
 
 We can arrive at no other conclusion, in my opinion, than that 
 the tax provided for in this law is only enforceable as to property 
 which, at the time of the owner's death, was within the territorial 
 limits of this state As a law imposing a special tax, it is to be 
 strictly construed against the state and a case must clearly be made 
 out for its application. We should incline against a construction 
 which might lead to double taxation; a result possible and probable 
 under a different view of the law. If the property in a foreign 
 jurisdiction was in land, or in goods and chattels, when, upon the 
 testator's death, a new title, or ownership, attached to it, the bring- 
 ing into this state of its cash proceeds, subsequently, no matter by 
 what authority of will, or of statute, did not subject it to the tax. 
 A different view would be against every sound consideration of 
 what constitutes the basis for such taxation, and would not accord 
 with an understanding of the intention of the legislature, as more 
 or less plainly expressed in these acts. 
 
 My brethren are of the opinion that the tax imposed under the 
 act is a tax on the right of succession, under a will, or by devolu- 
 tion in case of intestacy; a view of the law which my considera- 
 tion of the question precludes my assenting to. 
 
 They concur in my opinion =o far as it relates to the imposition 
 of a tax upon real estate situated out of this state, although owned
 
 278 MUST PERTAIN TO DISTRICT TAXED. 
 
 by a decedent, residing here at the time of his decease; holding 
 with me that taxation of such was not intended, and that the doc- 
 trine of equitable conversion is not applicable to subject it to taxa- 
 tion. But as to the personal property of a resident decedent, where- 
 soever situated, whether within or without the state, they are of 
 the opinion that it is subject to the tax imposed, by the act. 
 
 The judgment below, therefore, should be so modified as to ex- 
 clude from its operation the personal property in New Jersey and, 
 as so modified, it should be affirmed, without costs to either party 
 as against the other. 
 
 MAYNAKD, J., not sitting. 
 
 MARYLAND V. DALRYMPLE ET AL. 
 
 Court of Appeals of Maryland. January, 1889. 
 70 Maryland 294. 
 
 Me SHERRY, J., delivered the opinion of the court. 
 
 William H. Dalrymple, a resident of California, died there on the 
 twenty-second of November, eighteen hundred and eighty-one, leav- 
 ing a last will and testament executed according to the laws of that 
 State. By his will he bequeathed all his personal property to one 
 Marie E. Hatch, now Marie E. Gamble, also of California. She 
 was not the mother, the wife, the child nor lineal descendant of the 
 testator. The will was duly admitted to probate in the Probate 
 Court of the decedent' s domicile, and letters of administration were 
 there granted with the will annexed to Peter Alferitz. Subse- 
 quently a certified transcript of said will and probate was admitted 
 by the Register of Wills of said Baltimore City to record and was 
 recorded in his office. Thereafter letters of administration with the 
 will annexed, were issued by the Orphans' Court of Baltimore City 
 to the appellees. When William H. Dalrymple died he was entitled 
 to a one-fourth undivided part of the personal estate of his brother. 
 Edwin A. Dalrymple, a resident of the State of Maryland, who 
 died in the City of Baltimore in October, eighteen hundred and 
 eighty-one, some three weeks prior to the decease of William. Upon 
 the settlement of Edwin's estate the appellees received, as adminis- 
 trators of William's estate, sundry certificates of National Bank 
 stock and Baltimore City stock, several Missouri State bonds and 
 cash, aggregating at the appraised value of the securities, the sum
 
 MARYLAND V. DALRYMPLK ET AL. 279 
 
 of $27,337.87; which was diminished by the payment of costs and 
 expenses to the sum of $21,449.21; but the accretions from divi- 
 dend and interest have since increased this latter amount to the 
 sum of $27,320.77; which the appellees now hold ready for deliv- 
 ery to the said Mrs. Gamble, the legatee named in William's will. 
 Upon this sum the State of Maryland claims that the appellees owe 
 to the State the collateral inheritance tax of two and one-half per 
 cent, imposed by sec. 102, of Art. 81 of the Code of 1888. Suit 
 was brought by the State against the appellees for the recovery of 
 this tax. To the declaration, which sets forth in detail the facts we 
 have just outlined, the appellees demurred, and the Court of Com- 
 mon Pleas of Baltimore sustained the demurrer, and entered judg- 
 ment thereon against the State. From that judgment this appeal 
 has been taken. 
 
 The statute imposing this tax is in these words: "All estates, 
 real, personal, and mixed, money, public and private securities for 
 money of every kind passing from any person who may die seized 
 
 and possessed thereof, being in this State, to any 
 
 person or persons, bodies politic or corporate, in trust or otherwise, 
 other than to or for the use of the father, mother, husband, wife, 
 
 children and lineal descendants of the grantor shall 
 
 be subject to a tax of two and a half per centum on every hundred 
 dollars of the clear value of such estate, money or securities . . ." 
 
 It has been settled by this court in Tyson et al. v. State, 28 Md., 
 577, that such a tax is free from any constitutional objection. 
 
 Possessing, then, the plenary power indicated, it necessarily fol- 
 lows that the State in allowing property actually located here, or 
 personal property situated elsewhere but owned by a resident, to be 
 disposed of by will, and in designating who shall take such prop- 
 erty, where there is no will, may prescribe such conditions, not in 
 conflict with or forbidden by the organic law, as the Legislature 
 may deem expedient. These conditions, subject to the limitation 
 named, are, consequently wholly within the discretion of the Gen- 
 eral Assembly. The act we are now considering plainly intended to 
 require that a person taking the benefit of a civil right secured to 
 him under our laws should pay a certain premium for its enjoy- 
 ment. In other words, one of the conditions upon which stranger? 
 and collateral kindred may acquire a decedent's property, which is 
 subject to the dominion of our laws, is, that there shall be paid out 
 of such property a tax of two and a half per cent, into the treasury 
 of the State. This, therefore, is not a tax upon the property itself,
 
 280 MUST PERTAIN TO DISTRICT TAXED. 
 
 but is merely the price exacted by the State for the privilege ac- 
 corded in permitting property so situated, to be transmitted by will 
 or by descent or distribution. 
 
 That this is so is abundantly clear from the language of the stat- 
 ute and its several provisions. 
 
 It is thus quite apparent that the whole scheme of the law looks 
 to and contemplates the collection of the tax through an executor 
 or administrator exercising authority under the laws of this State, 
 and answerable to those laws for the faithful performance of his 
 duties. Ample provision is made for every possible contingency that 
 may arise, whether the decedent be a resident of this State or not, 
 provided the property be located here, if he be a non-resident, or 
 be actually or constructively here, if he be a resident. No estate 
 can escape administration if the laws be enforced, and when the 
 property passes into the hands of the executor or administrator his 
 obligation to pay the tax is fixed and his bond at once becomes 
 liable therefor. 
 
 The tax, we have said, is on the transmission of the property "be- 
 ing in the State," and no reason has been assigned or can be sug- 
 gested why the broad language of the statute and the evident design 
 of the Legislature should be so narrowed and restricted as to ex- 
 empt from this tax the property of a non-resident actually here, 
 notwithstanding that same property may, for other purposes, be 
 treated as constructively elsewhere. 
 
 In permitting property within the State, upon the death of its 
 owner, to pass by devise or descent or distribution, the Legislature 
 has seen fit, where strangers or collateral kindred receive it, to ex- 
 act, as the condition upon which that privilege is granted, the tax 
 in question. The imposition and collection of the tax cannot, there- 
 fore, depend upon the mere accidental residence of the owner. 
 
 Orcutt's Appeal, 97 Pa. St. 179, is not analagous to the case be- 
 fore us. There a resident of New Jersey had deposited with a Phil- 
 adelphia trust company, for safe keeping, certain United States 
 bonds. He died in New Jersey, where administration upon his 
 estate was duly granted. The trust company declined to surrender 
 these bonds to the New Jersey executor unless ancillary letters 
 should be taken out in Pennsylvania. These letters were accord- 
 ingly taken out, the bonds were received from the trust company, 
 and being over-due, were collected; and thereupon the collateral in-
 
 MARYLAND V. DALRYMPLE ET AL. 281 
 
 heritance tax was demanded and the Orphan's Court of Philadel- 
 phia directed it to he paid. This order was reversed upon appeal. 
 It is obvious the bonds had no situs different from the domicile of 
 their owner. They were "simply evidences of indebtedness, not by 
 any person or corporation within the Commonwealth, but by tho 
 general government. . . . The testator intrusted the bonds 
 temporarily, for safe keeping, to the Fidelity Company, but they 
 were constructively at least, in his possession at the time of his 
 decease." In the case at bar the property is actually in this State. 
 It belonged to Edwin A. Dalrymple, who was, at the time of his 
 death, a resident of Maryland. Upon his decease his brother Wil- 
 liam became entitled to it. It is still here in Maryland and the 
 larger portion of it is invested in the very same stocks and securi- 
 ties which Edwin held in his lifetime. 
 
 We have no difficulty in distinguishing between this and the Eng- 
 lish cases. In those cases the several Acts of Parliament imposing 
 probate, legacy and succession duties underwent construction. 
 
 Thus whilst the power of Parliament to impose the tax without 
 reference at all to the subject of domicile is distinctly recognized; 
 it was held that the language of the Acts did not furnish any indi- 
 cation of an intention to exercise that power, and that, therefore, 
 the law of the domicile of the owner fixed the liability of his prop- 
 erty to pay these taxes. In our opinion, for the reasons we have 
 given, the Maryland statute cannot be so construed. 
 
 It results from what we have said, that the tax is payable in this 
 case, and the amount of the tax will depend upon the sum in the 
 hands of the appellees payable to the legatee. 
 
 The judgment of the Court of Common Pleas, must, therefore, be 
 reversed, and a new trial will be awarded. 
 
 Judgment reversed and new trial awarded. 
 
 See also cases reported in Chap. X under IV Situs of property.
 
 CHAPTER VL 
 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 I. INDIVIDUAL DISCRIMINATION. 
 STATE EX EEL. TRUSTEES V. TOWNSHIP COMMITTEE. 
 
 Supreme Court of New Jersey. November, 1872 
 7 Vroom 66. 
 
 DEPUE, J. Application being made by the school trustees to the 
 township committee for the issuing of bonds to the amount of 
 $3500, under the act above recited, the township committee declined 
 to issue the same, whereupon application was made to this court for 
 a writ of mandamus to compel the committee to issue such bonds. 
 
 The amount of tax assessed in the school district for the building 
 of a school-house in the year 1871 was $1000. Of this amount it 
 appears by the depositions that $807 have been collected. The res- 
 idue is in litigation. The act directs that the first assessment upon 
 the persons and property in the school district liable to taxation to 
 provide the means of paying the bonds, shall not exceed $2000, and 
 that in assessing the sum the township committee shall so direct to 
 be raised the amount in excess of $1000 that it shall be assessed only on 
 those taxable inhabitants of the school district who have not paid 
 the assessment against them for the year 1871. Under this section 
 the township committee are empowered to direct the assessment of 
 the sum of $1000 upon certain individuals who are delinquents, 
 whose delinquency in all is less than $200. It is insisted by the 
 defendants' counsel that the mode of levying the tax contemplated 
 by this act is not a legitimate method of taxation, and that there- 
 fore no adequate provision is made for the payment of the bonds of 
 the township by taxation upon the school district. 
 
 The power of the legislature to validate the assessment of taxe* 
 which is liable to be avoided for mere irregularities in the proceed- 
 ings in making the assessment, is well settled. State v. Apgar, 2 
 Vroom 358; State v. Town of Union, 4 Ib. 350. The act in ques- 
 tion has none of the qualities of an act validating the proceedings 
 in levying the former tax. It is the assumption by the legislature 
 of the power to subject the delinquents to a penalty of $1,000 for 
 a delinquency of $200, in the discretion of the township committee. 
 
 282
 
 STATE TRUSTEES V. TOWNSHIP COMMITTEE. 283 
 
 That this is the real import of the act is apparent. Indeed, the 
 learned and astute counsel who argued this motion in behalf of the 
 relators, so clearly discerned the exact import of this legislation 
 that he was driven to maintain before the court that it was within 
 the power of the legislature to select certain individuals as subjects 
 of taxation, and impose upon them individually such burdens as the 
 legislature saw fit, even to the extent of the payment of the state 
 debt, or defraying the entire expenses of the state government. 
 
 The power of the legislature in the matter of taxation is said to 
 be unlimited. Such undoubtedly is the theory of our government. 
 But it is not every exaction made under color of taxation that can 
 be supported as the legitimate exercise of the sovereign power of 
 taxation. It is of the very essence of taxation that it should be 
 equal and uniform, and that where the burden is common there 
 should be a common contribution to discharge it. Cooley's Const. 
 Law 495. Not that it is essential to the validity of taxation that 
 it should be levied according to rules of abstract justice. The leg- 
 islature may create special taxing districts, defining their limits in 
 its discretion, or designate certain occupations, trades or employ- 
 ments as special subjects for taxation; or discriminate between dif- 
 ferent kinds of property in the rate of taxation; or may apportion 
 the taxes among the classes of persons or property made liable to 
 taxation, in such manner as may seem fit. In this way inequalities 
 in the share of the public burden, or even double taxation may 
 arise without any relief except by appeal to the legislature. But 
 when the taxing district has been defined, and the classes of per- 
 sons or kind of property specially set apart for taxation have been 
 designated, the tax must be apportioned among those who are to 
 bear the burden upon the rule of uniformity. Cooley's Const. Law, 
 pp. 493-513. Taxation operates upon a community, or a class in a 
 community, according to some rule of apportionment. When the 
 amount levied upon individuals is determined without regard to the 
 amount or value exacted from any other individual or classes of in- 
 dividuals, the power exercised is not that of taxation but of eminent 
 domain. The People V. Mayor of Brooklyn, 4 Comstock 420. A 
 tax upon the persons or property of A, B and C individually, wheth- 
 er designated by name or in any other way, which is in excess of an 
 equal apportionment among the persons or property of the class of 
 persons or kind of property subject to the taxation, is, to the extent 
 of such excess, the taking of private property for a public use with- 
 out compensation. The process is one of confiscation and not of 
 taxation.
 
 284 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 But it is argued that the township Committee may, in executing 
 their duties under the act, so perform them as that no greater sum 
 will be levied upon the delinquents, or their property, than the 
 amount of their unpaid tax, and that therefore a valid tax may be 
 laid under the act. The argument may be sound. On that sub- 
 ject the court express no opinion. For the present purposes it is 
 sufficient that the act in question gives to the township committee 
 the power arbitrarily to impose a sum in excess of such delinquency. 
 Nor does it appear except by the recital in the preamble of the act, 
 lhat the refusal of the delinquents to pay the former assessment is 
 based on mere irregularities in the mode of assessment. For aught 
 that is shown, the legal objections to the collection of the tax as- 
 sessed against them, are of such nature as to be beyond the power 
 of the legislature to remove. 
 
 The school district in question is one of the school districts in 
 the township of Readington. The act does not impose upon the 
 township the burden of erecting the school building. It contem- 
 plates that the cost shall ultimately be borne by the taxable inhab- 
 itants of the district, although the only means of reimbursement is 
 by the taxation provided for. 
 
 The court should not award a mandamus to enforce this compul- 
 sory suretyship by the township for the debts of the school district, 
 where any well grounded doubt exists whether the means of indem- 
 nification provided are such as can be made available. It is better 
 to subject the school district to the inconvenience of a delay until 
 further legislative action may be obtained, than to involve the town- 
 ship in a litigation to enforce the collection of a tax of doubtful 
 constitutionality. 
 
 The application is denied, and rule to show cause discharged. 
 
 OILMAN V. CITY OF SHEBOYGAN. 
 
 Supreme Court of the United States. December, 1862. 
 2 Black, 510. 
 
 Mr. Justice SWAYNE. This is a suit in equity brought here by 
 appeal from the District Court of the United States for the District 
 of Wisconsin. The bill states as follows: 
 
 The complainant is the owner of a large amount of real estate in 
 the city of Sheboygan, which is described in the bill.
 
 G1LMAN V. CITY OF SHEBOYGAN. 285 
 
 [Under acts of the legislature] the City has made loans and is- 
 sued its bonds therefor to the amount of $200,000. 
 
 The legislature passed a subsequent Act which is as follows: 
 
 "Section 1. All taxes hereafter levied by the common council 
 of the city of Sheboygan for the [payment] of principal or interest 
 of any bonds issued or to be issued by said City to aid in the con- 
 struction of any railroad, plank road, or for any improvement of 
 the harbor at the mouth of the Sheboygan River, shall be levied by 
 said council on the real estate of said city exclusively. 
 
 "Sec. 2. All acts or parts of acts that conflict with the pro- 
 visions of this act are hereby repealed. 
 
 "Sec. 3. This act shall take effect and be in force from and after 
 its passage. 
 
 "Approved March 7, 1857." 
 
 In the year 1857, the City Council under the last named act, lev- 
 ied a tax upon all real estate within the limits of the City of six 
 cents upon each dollar of the valuation thereof "for its harbor loans, 
 railroad and plank road bonds," "and did not levy said sum or any 
 part thereof upon any other kind of property within the said City 
 of Sheboygan for the said harbor loans, railroad and plank road 
 bonds, but levied the tax for the payment of the interest upon 
 those specific objects entirely and solely out of the real estate with- 
 in said City limits; and that the real estate above stated and set 
 forth in this complaint was included in and was taxed at the rate 
 aforesaid, and for the purpose aforesaid/' 
 
 At the time this tax was levied, there was personal property in 
 the City of Sheboygan to the amount of three or four hundred 
 thousand dollars, liable to taxation, and upon which no tax was 
 levied for either of said purposes for the year 1857. The act of 
 March 7, 1857, and the tax levied under it, are alleged to be void. 
 Defendant, Geele, is the treasurer of said City, and as such author- 
 ized to execute deeds for land sold for taxes when the time for re- 
 demption expires. The complainant's property in the City has been 
 sold for said tax and bought in by the City. Geele threatens to 
 execute deeds to the City for the same. The time for redemption 
 is about to expire. 
 
 The deeds, it is alleged, will cast a cloud upon complainant's title, 
 embarrass him in disposing of the property, and render it less valua- 
 ble to him. The prayer of the bill is that the treasurer be perpet- 
 ually enjoined from executing, and the City from receiving, such' 
 deeds, and for general relief
 
 286 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 Is the Act of 1857 invalid, because it requires the tax in ques- 
 tion to be levied exclusively upon the real estate of the city? 
 
 The provisions of the State Constitution, to which our attention 
 has been called, as bearing upon the subject, are the following: 
 
 Art. VIII. "Sec. 1. The rule of taxation shall be uniform, and 
 taxes shall be levied upon such property as the legislature shall pre- 
 scribe." 
 
 In Knowlton v. The Supervisors of Rock County, (9 Wis. Rep. 
 410), the section requiring uniformity of taxation underwent an 
 able and exhaustive examination. The Court affirmed the following 
 propositions : 
 
 "The levying of taxes by the authorities of a county, city or 
 town, for their support is as much the exercise of the taxing power 
 as when directly by the State for its support. The State acts by 
 the municipal governments, and their acts in levying taxes are as 
 much the act of the State as if the State acted by its own officers. 
 
 "The Constitution of the State requires, as a rule in levying taxes, 
 that the valuation must be uniform and in all cases alike or equal, 
 operating alike upon all the taxable property throughout the terri- 
 torial limits of the State or municipality within which the tax is to 
 be raised. And where the Legislature prescribed a different rule, 
 the act is a departure from the constitution and therefore void. 
 
 "The Constitution has fixed one unbending uniform rule of taxa- 
 tion for the State, and property cannot be classified and taxed as 
 classed by different rules. 
 
 "The provision of the Constitution, that taxes shall be levied upon 
 such property as ..the Legislature shall prescribe, does not sanction a 
 discrimination which provides for taxing a particular kind of prop- 
 erty for the support of Government by a different rule from that 
 by which other property is taxed; for when the kind of property is 
 prescribed the rule of taxation must be uniform. All kinds of 
 property must be taxed uniformly, or be absolutely exempt." 
 
 In this case, under the provisions of the charter of the City of 
 Janesville, lands within the City limits laid out into City lots, and 
 other lands not so laid out, had been taxed at different rates, and 
 the property of plaintiff had been sold for the non-payment of the 
 taxes. The Court held the tax void, and enjoined the treasurer 
 from executing deeds to the tax purchasers. 
 
 In the case of Weeks v. The City of Milwaukee et al., (10 Wis. 
 242), the preceding case was considered and approved by the Court. 
 The proposition that the constitutional provision requiring the "rule
 
 OILMAN V. CITY OF SHEBOYGAN. 287 
 
 of taxation to be uniform" extends to municipal corporations, and 
 that the constitutional provision requiring the Legislature to restrict 
 their powers of taxation was only intended to furnish a further pro- 
 tection, were expressly and unanimously re-affirmed. They held 
 further, that where the assessors of the City of Milwaukee, in obe- 
 dience to an ordinance of that City, omitted to assess property to 
 the value of $150,000, which ought to have been assessed, and that 
 property was thereby exempted from taxation, the omission was 
 fatal to the entire tax, and that the complainant's taxes being in- 
 creased by the omission he was entitled to an injunction to restrain 
 the sale of his lands for such illegal taxes. 
 
 In Sanderson v. Cross, (10 Wis. 282), the doctrines of Knowlton 
 v. The Supervisors of Rock County, were again unanimously ap- 
 proved. 
 
 In their opinion the court adopt the following language, from 
 the City of Zanesville v. Richards, (5 Ohio St. 589) : "The Gen- 
 eral Assembly is no longer invested with the discretion to apportion 
 the tax, and to determine upon what property and in what propor- 
 tion the burden shall be laid. A uniform rate per cent must be lev- 
 ied upon all property subject to taxation according to its true val- 
 uation money, so that all may bear an equal burden." 
 
 The Ohio case was decided under provisions in the Constitution 
 of that State similar to those in the Constitution of Wisconsin, to 
 which we have referred. 
 
 In the Attorney General v. The Winnebago Lake and Fox River 
 Plank Road Company, (11 Wis. 42), the Court say: "It cannot 
 be denied that under the power of exemption unjust enactments in 
 respect of the power of taxation might be made. But those who 
 framed the Constitution did not see fit to prevent such evils by de- 
 priving the Legislature of the power. But they did provide that 
 whatever property was made taxable at all should be taxed by a 
 uniform rule, which was designed to secure equality in the burdens 
 as between the different kinds of taxable property, but of course not 
 as between property taxable and that not taxable." 
 
 The Court refer with approbation to the Exchange Bank of Col- 
 umbus v. Hines, (3 Ohio St. 1.) In that case the Supreme Court 
 of Ohio say: "Taxing is required to be by a 'uniform rule,' that 
 is, by one and the same unvarying standard. Taxing by a uniform 
 rule requires uniformity not only in the rate of taxation, but also 
 uniformity in the mode of assessment upon the taxable valuation. 
 Uniformity in taxing implies equality in the burden of taxation, 
 and this equality of burden cannot exist without uniformity in the
 
 288 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 mode of assessment, as well as the rate of taxation. But this is not 
 all. The uniformity must be coextensive with the territory to which 
 it applies. If a State tax, it must be uniform all over the State. 
 If a county or city tax, it must be uniform throughout the extent 
 of the territory to which it is applicable. But the uniformity in 
 the rule required by the Constitution does not stop here. It must 
 extend to all property subject to taxation, so that all property may 
 be taxed alike, equally which is taxing by a uniform rule." 
 
 Acting upon a principle, recognized in its administration from 
 the earliest period of its history, this Court considers itself boun.l 
 in cases like this to follow the settled adjudications of the highest 
 State Court, giving constructions to the Constitution and laws of 
 the State 
 
 The. bill avers that at the time the tax complained of was levied, 
 there was personal property in the city, of the value of from $300,- 
 000 to $400,000, liable to taxation. The demurrer admits this fact. 
 The statute prescribing the property to be taxed, and that to be 
 wholly exempted from taxation, shows that this personal property 
 must have been taxed for other purposes. This tax was levied ex- 
 clusively upon the real estate of the City. That was a discrimina- 
 tion in favor of the personal property. It was beyond the consti- 
 tutional power of the Legislature to make any discrimination. Prop- 
 erty must be wholly exempted or not exempted at all. No partial 
 exemption or discrimination is permitted. To impose certain taxes 
 exclusively upon one class of taxable property is as much a dis- 
 crimination as to vary the rates of the same or other taxes upon 
 different classes of property. 
 
 The latter was attempted to be done, as has been shown, in the 
 city of Janesville. The tax was adjudged to be utterly void. 
 
 The same result must follow here. 
 
 A case illustrating more strongly than the case before us, the 
 wisdom of the rule of the Constitution, as thus interpreted, and 
 the injustice which may be done in departing from it, can hardly 
 be imagined. 
 
 The Court below erred in sustaining the demurrer and dismissing 
 the bill. 
 
 The decree is reversed, and the cause remanded for further pro- 
 ceedings in conformity with this opinion.
 
 MATTER OF PELL. 289 
 
 MATTER OF PELL. 
 
 Qowrt of Appeals of New York. 1902. 
 Ill New York, 48. 
 
 BARTLETT, J. The testator, Walden Pell, 1st, died, in the city 
 of Xew York on the fourteenth day of April, 1863, and by the 
 terms of his will he gave a life estate in all his property to his 
 widow, with remainders over at her death in equal shares (after 
 making various bequests of personal property) to his nephews and 
 nieces and the issue of any deceased nephew or niece, together witti 
 one equal share thereof to his sister Emma. The life tenant, the 
 widow, died on the twentieth day of December, 1899, at which time 
 all the estates in remainder came into the actual possession and 
 enjoyment of the beneficiaries under the will and codicil. 
 
 It is not disputed that under this will the bequests of personal 
 property and the estates upon remainder of real estate vested in 
 the beneficiaries at the time of the testator's death. 
 
 Xotwithstanding the vesting of these estates in the year 1863, 
 it is contended on behalf of the comptroller of the city of New York 
 that they are subject to the payment of the transfer tax, under an 
 amendment of the general statute, providing for taxable transfers 
 (Laws 1899, ch. 76), being article ten of an act in relation to tax- 
 ation, constituting chapter twenty-four of the general laws (Chap. 
 908 of the Laws of 1896, pp. 795, 868), which reads as follows: 
 
 "All estates upon remainder or reversion, which vested prior to 
 June thirtieth, 1885, but which will not come into actual posses- 
 sion or enjoyment of the person or corporation beneficially inter- 
 ested therein until after the passage of this act shall be appraised 
 and taxed as soon as the person or corporation beneficially inter- 
 ested therein shall be entitled to the actual possession or enjoyment 
 thereof." 
 
 This amendment of 1899 became a law on March 14th of that 
 year, the life tenant dying in the following December. 
 
 It is conceded that the remainders in this case are controlled by 
 this amendment if it can be sustained as a valid exercise of legis- 
 lative power. 
 
 This court in Matter of Seaman (147 X. Y. 69) held that the 
 
 Taxable Transfer Act of 1892, which provided that "such tax shall 
 
 also be imposed when any person or corporation becomes beneficial ly 
 
 entitled, in possession or expectancy, to any property or the income 
 
 19
 
 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 thereof by any such transfer, whether made before or after the pas- 
 sage of this act," was to be restricted to the case of grants or gifts 
 causa mortis, mentioned in the preceding portion of the subdivision, 
 and did not extend to transfers by will or intestacy so as to subject 
 to taxation rights of succession which accrued before the statute 
 came into existence. 
 
 This court and the Supreme Court of the United States have held 
 in numerous cases that the transfer tax is not imposed upon prop- 
 erty, but upon the right of succession. It, therefore follows that 
 where there was a complete vesting of a residuary estate before the 
 enactment of the transfer tax statute, it cannot be reached by that 
 form of taxation. In the case before us it is an undisputed fact 
 that these remainders had vested in 1863, and the only contin- 
 gency leading to their divesting was the death of a remainderman 
 in the lifetime of the life tenant, in which event the children of the 
 one so dying would be substituted. If these estates in remainder 
 were vested prior to the enactment of the Transfer Tax Act there 
 could be in no legal sense a transfer of the property at the time of 
 possession and enjoyment. This being so, to impose a tax based on 
 the succession would be to diminish the value of these vested estates, 
 to impair the obligation of a contract and take private property for 
 public use without compensation. 
 
 The learned 'Appellate Division reached the conclusion that this 
 amendment of 1899 was unconstitutional, and we agree with them 
 in that regard. They have, however, sustained this legislation on 
 the ground that it is a direct tax upon property and a legitimate 
 exercise of the taxing power. In so holding that learned court uses 
 this language: "It may seem incongruous that a transfer tax act, 
 which in principle was intended to impose a tax upon the right of 
 succession, should be construed in such a way as to uphold the tax 
 as one upon property. Our conclusion, therefore, upon the whole 
 case is, that if the tax sought to be imposed could only be sup- 
 ported upon the principle that it is a tax upon the right of succes- 
 sion, then there would be objections, among them constitutional 
 ones, to its validity; but that with reference to the estate here in- 
 volved, if the act can be construed, as with some misgivings we 
 think it can, as a tax upon property, it is free from constitutional 
 objections, and the tax may be upheld." 
 
 We are of opinion that it is a violent presumption as to the inten- 
 tion of the legislature to construe an act, which is avowedly de-
 
 MATTEK OF PELL. 291 
 
 signed to tax the succession of property, on the death of its owner, 
 as a direct tax. 
 
 It would seem to be too clear for argument that the legislative 
 intention in this regard was to deal with the act relating to taxa- 
 ble transfers and nothing else. 
 
 To say that the act was not an amendment of the law relating to 
 taxable transfers of property is to contradict what plainly appears 
 upon its face. 
 
 The intention of the legislature being so absolutely clear in the 
 premises, for it must be remembered that ever since the death of 
 the testator this property has borne and discharged its annual taxes 
 just the same as other property, we might well be justified in de- 
 clining to further consider the question of whether this is an effort 
 to impose a direct tax upon property. 
 
 Assuming, however, that the legislature intended to exercise its 
 power of direct taxation, the learned counsel for the appellant in- 
 gists that it is invalid for two reasons: 
 
 (1) The law does not subject to the tax a class of property but 
 does subject certain designated persons, defined by the character of 
 their ownership, to the payment of the tax. 
 
 (2) The law does not apportion the burden equally upon all 
 the owners designated, but discriminates between different owners, 
 so that the share of the burden imposed as to some owners is five 
 per cent, as to other owners it is one per cent, and as to still other 
 owners it is nothing at all. 
 
 It is the undoubted rule that the legislature possesses unlimited 
 power of taxation except as restrained by constitutional provisions. 
 These restraints require the taxation to be imposed according to 
 well-settled general rules. 
 
 It is to be observed that the amendment of 1899, now under con- 
 sideration, was further amended in 1900 and 1901 by changing 
 the words, "June 30th, 1885," to "May 1st, 1892." While these 
 changes do not affect the case at bar, still they indicate the legis- 
 lative intention to narrow the application of this statute to a very 
 limited number of individuals belonging to a larger class. The 
 vice of this legislation is that it does not seek to impose a tax on all 
 estates upon remainder, whether created by will or deed, that vested 
 prior to June 30th, 1885, but contains the further provision that
 
 292 EQUALITY AND UNIFOKM1TY IN TAXATION. 
 
 the life estate must expire after the passage of the amendment on 
 March 14th, 1899. 
 
 All the vested estates upon remainder or reversion, as to which 
 the intermediate life estate terminated between June 30th, 1885, 
 and March 14th, 1899, escape taxation, as they arc not within the 
 purview of the amendment of the latter year. The tax is, there- 
 fore, imposed upon a limited class of remaindermen, while others 
 who have come into possession and enjoyment, by reason of the ter- 
 mination of the life estate long after the early date fixed of June 
 30th, 1885, are not taxed. 
 
 The learned counsel for appellant states a very apt illustration 
 in his brief, as follows : "We often hear it declared that the legis- 
 lature may designate watches and carriages as a class of property 
 and subject the same to the payment of duties or taxes, but would 
 any one claim that a law, declaring that all watches or carriages 
 which were purchased prior to June 30th, 1885, should be ap- 
 praised and taxed, could be sustained upon the ground that such 
 law merely designated a class of propertj 7 for taxation?" 
 
 Where the statute declares that the owners of a particular class 
 of property, acquired at a particular time, shall be taxed, it is 
 equivalent to naming the owners of such property; it is in no sense 
 a general classification. 
 
 This amendment is clearly unconstitutional in another aspect, as 
 it does not apportion the burden equally among the owners of es- 
 tates sought to be taxed, for it imposes on some five per cent, on 
 others one per cent, and as to other owners nothing at all. It is 
 true this discrimination was brought about because the legis- 
 lature was dealing with a succession tax, and, consequently, main- 
 tained the differing rates of taxation found in the act in relation 
 to taxable transfers. This is still further evidence that the inten- 
 tion of the legislature was not to exercise its power of direct taxa- 
 tion. 
 
 It follows that the amendment of 1899, whether regarded as a 
 part of the act relating to taxable transfers, or an attempt on the 
 part of the legislature to exercise its general power of taxation, is 
 unconstitutional and void. 
 
 The order appealed from should he reversed, with costs, and an 
 order duly entered declaring the estate of Walden Pell, 1st, to be 
 exempt from the transfer tax. 
 
 GRAY, O'BRIEN, CULLEN and WERNER, JJ., concur; PARKER, 
 Ch.J., concurs only on the ground that chapter 76, Laws of 1899,
 
 SUPERVISORS V. C., B. & Q. R, R. CO. 293 
 
 does not provide for a direct tax upon property and in so far as it 
 aims to tax transfers of estates already vested when the act was 
 passed (which is this case), it is void. 
 Order reversed, etc. 
 
 It had been held prior to the amendment of 1899 that the transfer in the 
 case of a remainderman took place at the time of the death of the decedent. 
 Matter of Harbeck, 161 N. Y. 211. 
 
 See for the rule applied to the exercise of a power of appointment, Orr v. 
 Oilman, 183 U. S. 278, supra. 
 
 SUPERVISORS V. C., B. & Q. R. R. CO. 
 
 Supreme Court of Illinois. April, 1867. 
 44 Illinois 229. 
 
 Mr. Justice BREESE delivered the opinion of the Court. 
 
 The power of the legislature to impose taxes is expressly granted 
 by the Constitution, and is found in the following provisions of 
 that instrument. They are just, wise and simple. Section 2, arti- 
 cle 9, requires the general assembly to provide for levying a tax by 
 valuation, so that every person and corporation shall pay a tax in 
 proportion to the value of his or her property ; such value to be as- 
 certained by some person or persons to be elected or appointed in 
 such manner as the general assembly shall direct, and not other- 
 wise. Section 5 of the same article provides, that the corporate 
 authorities of counties, townships, school districts, cities, towns ami 
 villages may be vested with power to assess and collect taxes for 
 corporate purposes; such taxes to be uniform in respect to persons 
 and property within the jurisdiction of the body imposing the same. 
 
 In the exercise of this grant of powers, several laws have been 
 passed by the general assembly 
 
 By the act of February 14, 1855, a discrimination is made in re- 
 gard to the property of railroad companies. They are required, by 
 section 4, of that act, to set forth in their schedules, or lists of tax- 
 able property, a description of all the real property owned or occu- 
 pied by the company in each county, town and city through which 
 their railroad may run, and the actual value of each lot or parcel 
 of land, including the improvements thereon (except the track or 
 superstructure of the road), must be annexed to the description of
 
 294 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 each lot or parcel of land. This list must set forth the number of 
 acres taken for right of way, stations, or other purposes, from each 
 tract of land through which the road may run, describing the land 
 as near as practicable in accordance with the United States surveys, . 
 giving the width of the strip or parcel of land, and its length 
 through each tract; also, the whole number of acres and the aggre- 
 gate value thereof in such county, town and city. All this is de- 
 nominated real property, and such list must set forth the length of 
 the main track and the length of all side tracks and turn-outs in 
 each county, etc., through which the road runs, with the actual 
 value of the same, and the value of the improvements at each of 
 the several stations, where such stations are not a part of the city 
 or town lots. This track and these stations are denominated "fixed 
 and stationary personal property." 
 
 This list must also contain an inventory of the rolling stock be- 
 longing to the company with the value thereof. This rolling stock 
 is denominated personal property. The list must also contain a 
 statement of the value of all other personal property owned by the 
 company, and must also state the length of the whole main track 
 within the State and the total value of the rolling stock, which roll- 
 ing stock is taxed in the several counties, towns and cities pro raia, 
 in the proportion the length of the main track in such county, town 
 or city bears to the whole length of the road; all other property 
 must be listed and taxed in the county, town or city where the same 
 is located or used. This section then proceeds to define the descrip- 
 tion of all lands owned by any railroad company for right of way 
 or station purposes other than those which are a part of a laid oft* 
 town, city or village, under which it shall be entered by the asses- 
 sor in his books. Scates' Comp. 1166. 
 
 The second section provides, that this list or schedule of taxable 
 property belonging to a railroad company shall be made to the coun- 
 ty clerk, instead of the assessor, and the clerk is required to lay 
 ithe same before the board of supervisors when they meet to equal- 
 ize the assessment of property. 
 
 If a majority of this board are satisfied that the schedule is cor- 
 rect, they are required to assess the property according to it; but 
 jf they believe such schedule does not contain a full and fair state- 
 ment of the property of the company subject to taxation in such 
 county, made out and valued in accordance with the requirements of 
 the law, the board is authorized to assess, or cause it to be assessed, 
 in accordance with the rules prescribed for assessing such property. 
 Scates' Comp. 1105.
 
 SUPERVISORS V. C., B. & Q. R. R. CO. 295 
 
 The appellees, in the attempted performance of the duty enjoined 
 on them by these statutes, presented their list, or schedule of their 
 taxable property, for 1863, owned by them in Bureau county, to the 
 clerk of the County Court, in all respects, as alleged by them, in 
 strict compliance with the statute; which the clerk laid before the 
 board of supervisors when they met to equalize the assessments in 
 that county. This schedule presented an aggregate valuation of 
 $282,383 27-100 of their property owned in Bureau county, which, 
 by the action of the board was increased to $395,336 57-100, being 
 forty per cent above the valuation by the company. 
 
 Availing of the act of 1861, by which an appeal is allowed to the 
 Circuit Court from the action of the board of supervisors, the com- 
 pany took an appeal to the Circuit Court of Bureau county, and, by 
 change of venue, the cause was transferred to La Salle county, in 
 the Circuit Court of which county, at the March Term, 1866, such 
 proceedings were had as resulted in a deduction by that court of the 
 per cent thus imposed by the board of supervisors, leaving the sched- 
 ule of the company as originally presented to the county clerk in- 
 tact. 
 
 To reverse this judgment, the county of Bureau bring the case 
 here by appeal, and assign various errors, which we have fully con- 
 sidered 
 
 For the appellees, the court instructed the jury, if the company 
 valued their property in their schedule or return, so that it bore a 
 just relation to other property in the county, then the board of. 
 supervisors had not power to increase the valuation, and they should 
 find for the company; and, further, if the jury believed that the 
 addition of forty per cent to the aggregate valuation returned by 
 the company so increased the valuation that it bore an undue pro- 
 portion of the taxes of the county, then such an increase was un- 
 warranted by law, and the jury would be authorized to reduce the 
 assessment, so that it would bear a proper proportion to such taxes, 
 but they could not reduce it below the valuation fixed upon it by 
 the company. Appellants asked instructions directly opposite to 
 those given for appellees, which were refused by the court. 
 
 The instructions so given announce principles so congenial to 
 justice, and so consonant with the principles of equity, and so rea- 
 sonable, as to challenge the approbation of all right-minded men, 
 and they ought to be sustained if they are in accordance with the 
 law under which the proceedings were had. This, then, becomes the 
 main point of inquiry.. 
 
 It is insisted by appellees, that their property, by this addition of
 
 296 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 forty per cent on its valuation, as returned by them to the county 
 clerk, placed on it by the board of supervisors, has the effect to 
 cause them to pay a greater proportion of the revenue than is de- 
 manded of individuals listing their property for taxation in the 
 same county. If this be so, no just mind, with the Constitution of 
 the State before him, could sanction the proceeding. The great 
 central and dominant idea in that instrument is, uniformity of tax- 
 ation; and no power exists, or should exist, in any corporate author- 
 ity to go counter to this command of the fundamental law. A mode 
 has been furnished by law by which this uniformity shall be at- 
 tained; and that is, that property shall be assessed at its actual 
 value, and the rate of taxation placed upon it shall be the same re- 
 gardless of persons or ownership. Persons are elected to ascertain 
 this value, and the rate is prescribed. 
 
 It sufficiently appears, that the schedule returned by the appel- 
 lees to the clerk of the County Court, fixed the value of the prop- 
 erty owned by them in Bureau county on the same, or on a more 
 liberal basis, than the several assessors in the various towns fixed 
 upon the property of individuals in the same county, though in 
 neither case was the property valued at anything near its actual 
 cash value. For instance, while the valuation of the property of 
 individuals ranged from one-fifth to one-third of its cash value, 
 that of the appellees ranged from one-third to one-half of its actual 
 value. 
 
 The requirements of the law that each separate parcel of property 
 shall be valued at its true value in money, though simple as a prop- 
 osition, is not always easy to obey; nor is that requiring personal 
 property to be valued at the usual selling price of similar property 
 at the time of listing. So many elements enter into the price of an 
 article, even one in common use, that it is difficult to put a selling 
 price upon it. Upon railroad property it is still more difficult, as 
 their personal property has no market value. Their property is sm 
 generis, not affected by the principles of supply and demand, and is, 
 for the most part, unsalable except in emergencies, when competing 
 lines may need rolling stock or other portions of their equipments. 
 It cannot be affirmed of a railroad in running condition, that its 
 properties are marketable. What they cost is no evidence of their 
 real value; nor do we know of any means an assessor or a board 
 of supervisors may have at command by which to determine pre- 
 cisely the true value of their most valuable property. Their lands 
 can be valued with the same, but with no greater facility than sim- 
 ilar property of individuals; but the value of their track, and super-
 
 SUPERVISORS V. C., B. & Q. R. R. CO. 297 
 
 structure, and rolling stock depends so much on contingencies that 
 it seems almost impossible to fix its real value. But, assuming the 
 values to be as fixed by the witnesses examined on this point, tb.2 
 return made by appellees shows that the valuation they fixed upon 
 it, was from one-third to one-half of its appraised value. But we 
 do not intend to go into the minutiae, but to announce simply the 
 principles we recognize as legal and just, which should govern the 
 whole subject. The question is before us in all its length and 
 breadth : Can a railroad company, by any action of the corporate 
 authorities of a county, be required to pay more than its fair share 
 of taxes as compared with those paid by individuals? Does the 
 power exist anywhere to destroy the cardinal principle of uniformity 
 of taxation so forcibly and prominently insisted upon by the Consti- 
 tution? This is a great question, affecting, not only railroad cor- 
 porations, but every property owner and tax payer in the State. 
 
 It seems to us there is something so monstrous in the proposi- 
 tion as to be indefensible by fair argument. 
 
 Regarding uniformity as the vital principle, the dominant idea 
 of the Constitution, where can the power reside to produce its op- 
 posite? Where is the power lodged, in view of this principle, to 
 compel A to pay, on his land or personal property, of no more 
 value than the same kind of property belonging to B, forty per cent 
 more taxes than are assessed against B? We affirm such a power 
 nowhere exists, and if it did it would be so revolting in its exer- 
 cise to the lowest sense of justice with which our species is imbued 
 as to justify any and every lawful expedient for relief against it. 
 
 The framers of our Constitution and our lawmakers, to their 
 credit be it said, have kept steadily in view the principles of equal- 
 ity and justice, in adopting a system of taxation which commends 
 itself to the favor and approbation of all well organized minds. 
 
 It is no argument to urge that the fault is with the assessors in 
 the case of individuals, and with the railroad companies in making 
 out their schedules for the county clerk. If the assessors violate 
 their duty, are railroad companies to be the sufferers ? If they 
 neglect to act fully up to all the requirements of the law, is that 
 any reason why A should pay forty per cent more taxes, in propor- 
 tion to value, than B? 
 
 The rule adopted by the assessors in this State has grown into a 
 custom, and has been tacitly sanctioned by every department of the 
 government for a long course of years, and it is now too late to 
 challenge it. Even so late as the last special session of the legis- 
 lature, that body, by clear implication, acknowledged the custom
 
 298 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 and yielded to its influence, by the provisions of the act to tax the 
 shares in national banks. They therein impliedly declare that such 
 shares are to be taxed the same as other property. A share of bank 
 stock, under that bill, is not required to pay more State or local 
 taxes than a piece of land, or a house, of equal value; and the plain 
 inference is, if such property be assessed on only one-third of its 
 actual value, bank stock shall be assessed on the same per cent of 
 its actual value. Would not the sense of justice of every man in 
 this community be outraged by allowing this or any other deprecia- 
 tion to one class of people, and demanding of another a higher tux 
 on a similar article of the same actual value? The proposition can- 
 not commend itself to the favor of any just man, and can receive 
 no countenance in a court of justice. 
 
 It is admitted as a fact on both sides of this controversy, that the 
 property of no one owner in the county of Bureau has been taxed 
 on its real value, and that the per cent added by the board of super- 
 visors to the valuation of the property of appellees imposes on them 
 a greater proportionate burden than the law requires them to bear. 
 We are of this opinion, and therefore consider the action of the 
 board unfounded in justice, and in direct opposition to the Consti- 
 tution. The great and attractive feature of uniformity has been 
 disregarded by the board, and appellees victimized. It may be very 
 desirable, that the greatest share of the public burdens shall be 
 borne by these corporations, but until there is a radical change in 
 our fundamental law it cannot be done. They stand on the plat- 
 form of equality before the law, and no greater burden for the sup- 
 port of government can be imposed upon them than can be placed 
 on the individual tax payer. 
 
 Entertaining these views, we must affirm the judgment of the 
 La Salle Circuit Court. The action of the board of supervisors of 
 Bureau county was ultra vires, and cannot be sanctioned by this 
 court. 
 
 Judgment affirmed. 
 
 WALKER, Ch. J., dissenting.
 
 CALIFORNIA V. McCREERY. 299 
 
 II. POWER OF EXEMPTION. 
 CALIFORNIA V. McCREERY. 
 
 Supreme Court of California. January, 1868. 
 34 California 482. 
 
 By the Court, RHODES, J. : 
 
 Another question, and one of much greater importance under our 
 present revenue system, does arise in this case. The defendant ob- 
 jects to the tax on the ground "that the Legislature having, in 
 defiance of constitutional requirements, imposed the burden of tax- 
 ation upon a portion only of the property in the State, and ex- 
 pressly relieved a large portion from taxation, the law is neither 
 equal nor uniform in its operation, does not tax 'all the property 
 in the state,' and is therefore void." 
 
 The section of the constitution referred to is section thirteen of 
 Article Eleven, and is as follows: 
 
 "Taxation shall be equal and uniform throughout the State. All 
 property in this State shall be taxed in proportion to its value, to 
 be ascertained as directed by law; but Assessors and Collectors of 
 town, county and State taxes shall be elected by qualified electors of 
 the district, county or town in which the property taxed for State, 
 county or town purposes is situated/' 
 
 Construction or interpretation can scarcely make the meaning of 
 the words more apparent, for there is no word in the clause of am- 
 biguous or doubtful import. The meaning of taxation must be kepf 
 in view, and that is: a charge levied by the sovereign power upon 
 the property of its subject. It is not a charge upon its own prop- 
 erty, nor upon the property over which it has no dominion. This 
 excludes the property of the State, whether lands, revenues or other 
 property, and the property of the United States. That "all prop- 
 erty in this State" does not mean either all that the Legislature may 
 designate, or all except such as the Legislature may exempt, is as self 
 evident as the axiom that the "whole is greater than a part." No 
 process of reasoning or demonstration can make it plainer. 
 
 It is provided by the second section of the General Revenue Act 
 of 1857, as amended in 1859, (Stats. 1859, p. 343), that "all prop- 
 erty of every kind and nature whatever within this State shall be 
 subject to taxation, except" certain property therein specified. After
 
 300 EQUALITY AND UNIFOKMITY IN TAXATION. 
 
 mentioning the property of the State, the counties and municipal 
 corporations, and of the United States, the section enumerates col- 
 leges, school houses and other huildings for the purpose of educa- 
 tion, public hospitals, asylums, poor houses and other charitable in- 
 stitutions for the relief of the indigent and afflicted, churches, chap- 
 els and other buildings for religious worship, together with lots of 
 ground and other property appurtenant thereto; cemeteries and 
 graveyards; the property of widows and orphan children to the 
 amount of one thousand dollars; growing crops and mining claims. 
 If the power exists in the Legislature to exempt growing crops, 
 mining claims and other property mentioned, the exemption may 
 be carried still further, until property of one class is made to bear 
 the whole burden of taxation. The exemption, so far as it includes 
 private property, is in plain violation of the command of the Con- 
 stitution. 
 
 All property of the state and municipalities held for governmental purposes 
 is impliedly exempted from taxation. Louisville v. Com., 1 Duv. 295 ; Roches- 
 ter v. Rush, 80 N. Y. 302 ; Industrial University v. Champaign Co., 76 111. 283. 
 There is some doubt as to property held in a private capacity by municipali- 
 ties. Louisville v. Commonwealth, 1 Duv. 295. 
 
 In the absence of a constitutional prohibition the legislature may exempt 
 property and persons from taxation. This results from the power the legis- 
 lature has to select the objects of taxation and the application of the rule that 
 nothing not selected for that purpose by the legislature is taxable. See Simp- 
 son v. Hopkins, 82 Md. 478. This case upheld a law which, while taxing mort- 
 gages of a corporation held by a resident on property subject to its jurisdic- 
 tion, exempted non-interest bearing bonds and mortgages of individuals and 
 building associations. But see Russell v. Curry, 164 Mo. 69, which holds 
 this violative of 14th amendment. 
 
 As to the effect on the validity of a tax of the omission of taxable 
 property from the assessment roll, see People v. Platt, 24 N. J. L. 108, infra. 
 
 PEOPLE EX EEL. MEDICAL COLLEGE V. CAMPBELL. 
 
 Court of Appeals of New York. October, 1883. 
 93 New York, 196. 
 
 Appeal from order of the General Term of the Supreme Court, 
 in the first judicial department, made January 17, 1883, which 
 affirmed an order of Special Term, directing the issuing of a per- 
 emptory writ of mandamus, requiring defendant, as comptroller of
 
 MEDICAL COLLEGE V. CAMPBELL. 301 
 
 the city of New York, to cancel of record certain taxes imposed in 
 1881, upon lots in said city, leased by relator under an agreement 
 that it should pay or procure the taxes thereon to be remitted. 
 
 The real estate was occupied and used as a medical college, hos- 
 pital and free dispensary for women. The lots were assessed, for 
 the year in question, to the owner, and the tax in question levied 
 October 13, 1881. In November, 1881, the relator petitioned the 
 department of taxes and assessments to have the property exempted. 
 The commissioners signed and sent to the comptroller a certificate 
 to the effect that they thereby exempted said property from taxa- 
 tion for the year 1881. 
 
 DANTORTH, J. We are of opinion that the case made by the re- 
 lator does not bring the property in question within any provision 
 of the statute allowing exemption from taxation. It is neither a 
 building for public worship, nor in any sense the property of a 
 religious society. Upon this point we agree with the court below. 
 Neither is it exclusively used as a seminary of learning, nor is it the 
 property of the New York Public .School Society, and unless one or 
 the other of these conditions attach, both building and premises re- 
 main liable to bear a just proportion of the public burden (Laws 
 of 1852, chap. 282; 1 R. S. 31, chap. 13, tit. 1, 4, subd. 3.) until 
 relieved therefrom in some legal manner. The respondent claims 
 that this result was reached when the department of taxes and as- 
 sessments decided that the property should be exempt from taxation 
 for the year 1881, and the serious question before us is whether 
 there is authority for that conclusion 
 
 It is apparent from these provisions that under them no tax 
 could lawfully be remitted except for cause, or property declared 
 exempt from taxation at the arbitrary discretion of any of the offi- 
 cers intrusted at different times with the administration of muni- 
 cipal affairs. Excessive valuation might be reduced, and property 
 exempt by law stricken from the roll, notwithstanding its owner's 
 delay in applying for relief, but the statute must in all cases furnish 
 the ground for exemption. Xone of these provisions have been re- 
 pealed, and we discover no intent on the part of the legislature by 
 the act in question (Laws of 1870, chap. 382, 8, supra) to dele- 
 gate to the commissioners the power of exempting property from tax- 
 ation, nor when we consider it in connection with other statutes, can 
 we conclude that they had any other object in view by its enact- 
 ment than the substitution of the commissioners, and the exercise by 
 them of powers, theretofore vested in the board of supervisors. 
 
 The certificate of the commissioners, therefore, was not author-
 
 302 EQUALITY AND UNIFORMITY IN TAXATION. 
 
 ized by law, and the relator was not entitled to a mandamus. The 
 orders of the Special and General Terms should be reversed, and 
 motion for mandamus denied with costs, and costs of this appeal. 
 
 All concur. 
 
 Ordered accordingly. 
 
 IN THE MATTER OF THE APPLICATION OF THE 
 
 MAYOR & C. OF NEW YORK FOR ENLARGING AND 
 
 IMPROVING NASSAU STREET. 
 
 Supreme Court of New York. January, 1814. 
 11 Johnson 77. 
 
 The commissioners appointed by the court, on the application of 
 the corporation of the city of New York, pursuant to the 17 8th sec- 
 tion of the act "to reduce several laws relating particularly to the 
 city of New York into one act," passed 9th April, 1813, (2 N. R. 
 L. 408) made a report of their estimate and assessment of the dam- 
 age and benefit to the parties interested, &c., in enlarging part of 
 Nassau street, by which, among other things, it appeared that they 
 assessed the benefit of the proposed improvement to the following 
 churches, to be paid by them, viz. on the French church Du St. 
 Esprit, 1,273 dollars, the Presbyterian church in Wall Street, 1,981 
 dollars and 81 cents, and the Scotch Presbyterian church, in Cedar 
 Street, 410 dollars. To this assessment the several churches stated 
 their objections in writing to the commissioners. Several individ- 
 uals, also, owners of houses and lots assessed, stated their objections 
 to the report, on the ground of the assessment being inequitable and 
 disproportionate. A motion having been made at the last term to 
 have the report of the commissioners confirmed, the churches, by 
 their counsel, as well as the individual proprietors, were heard in 
 support of their objections. 
 
 Per Curiam. The churches are not well founded in their claim 
 to a total exemption of their lots from assessments for opening, en- 
 larging, or otherwise improving, streets in the city of New York, 
 made in pursuance of the act of the 9th of April, 1813. (2 N. R. L. 
 408.) These assessments are intended and directed to be made 
 upon the owners of lands and lots who may receive "benefits and 
 advantage" by the improvement. The exemption granted by the 
 act of 1801, was in the general act for the assessment and collection
 
 IN THE MATTER OF NEW YORK. 303 
 
 of taxes; (1 N. R. L. 556.) (a) and the provisions of that act all 
 refer to the general and public taxes to be assessed and collected for 
 the benefit of the town, county, or State at large. The words of 
 the exemption are, that no church or place of public worship, nor 
 any school-house, &c., "should be taxed by any law of this state." 
 The word "taxes" means burdens, charges, or impositions, put or set 
 upon persons or property for public uses, and this is the definition 
 which Lord Coke gives to the word talliage (2 Inst. 532.) and Lord 
 Holt, in Garth. 438, gives the same definition, in substance, of the 
 word tax. The legislature intended by that exemption to relieve 
 religious and literary institutions from these public burdens, and 
 the same exemption was extended to the real estate of any minister, 
 ' not exceeding in value 1,500 dollars. But to pay for the opening of 
 a street, in a ratio to the "benefit or advantage" derived from it, is 
 no burden. It is no talliage or tax within the meaning of the ex- 
 emption, and has no claim upon the public benevolence. Why should 
 not the real estate of a minister, as well as of other persons, pay 
 for such an improvement in proportion as it is benefited? There is 
 no inconvenience or hardship in it, and the maxim of law that qui 
 sentit commodum debet sentire onus, is perfectly consistent with the 
 interests and dictates of science and religion. The legislature have, 
 in several instances, given this construction to the exemption in 
 question by recognizing as valid, similar assessments upon public 
 property in New York. (Acts, sess. 34 c. 246, s. 30. Sess. 35, c. 
 239, s. 43.) 
 
 Motion denied. 
 
 As a general thing it is held that a provision in a state constitution re- 
 quiring equality and uniformity of taxation is applicable only to property 
 taxes. People v. Coleman, 4 Cal. 46, supra; Newton v. Atchinson, 31 Kan. 151, 
 infra. But some cases hold that such a provision makes impossible progressive 
 inheritance taxes. State v. Ferris, 53 Ohio State, 314; State v. Switzler, 143 
 Mo. 287, and some go so far as to hold that all inheritance taxes are violative 
 of a uniformity provision. Curry v. Spencer, 61 N. H. 624.
 
 CHAPTER VII. 
 
 OFFICIAL ACTION IN MATTERS OF TAXATION. 
 
 SMITH V. MESSER. 
 
 Superior Court of Judicature of New Hampshire. 181$. 
 17 New Hampshire J+20. 
 
 Writ of Entry. John Smith, the late husband of the plaintiff, 
 conveyed to the Manufacturers' and Mechanics' Bank, a corporation 
 in Massachusetts, the James Hugh farm, so called, in Colebrook, a 
 part of which farm is demanded in this suit 
 
 A part of the farm was assigned to the plaintiff as her right of 
 dower. And she went into possession under the as- 
 signment, and so remained until divested by the defendant. 
 
 The plea is the general issue. 
 
 The defendant claimed title by virtue of a deed from a collector 
 of taxes under his sale. . . . 
 
 The plaintiff takes the following ... . exceptions to the 
 validity of the sale: 
 
 15. That Hutchinson was not legally collector of taxes for the 
 year 1842, because he did not give a bond, with sureties, to the 
 town within six days of his choice, or at any time. 
 
 GILCHRIST, J. 
 
 It sufficiently appears that Hntchinson was de facto collector, ex- 
 ercising the functions of that office under color of an election; and 
 it was held in Tucker v. Ailcen, 7 N. H. Rep. 113, that the acts of 
 an officer de facto are in general valid, so far as the rights of third 
 parties are concerned; and that the regularity of his appointment is 
 not to be collaterally inquired into in proceedings to which he is not 
 a party. The case of Cardigan v. Page, 6 N. H. Rep. 182, is there 
 adverted to, and the doctrine which it seems to establish declared 
 to be untenable. The giving of bonds, or the contrary undoubtedly 
 would have affected the tenure of his office, had proper measures 
 
 304
 
 SNELL V. FOKT DODGE ET AL. 305 
 
 been instituted for the purpose of testing its validity, but has no 
 bearing upon the fact that he was in the open exercise of the func- 
 tions appertaining to the office, and was collector in fact. 
 
 SNELL V. THE CITY OF FORT DODGE ET AL. 
 
 Supreme Court of Iowa. June, 1877. 
 45 Iowa 5G4. 
 
 Action in equity to restrain the collection of city taxes on certain 
 real property belonging to the plaintiff, situate within the corporate 
 limits of the defendant, on the grounds, as stated in the petition: 
 
 3. That the county auditor on his own motion and 
 
 without authority of law placed said levy on the tax lists and deter- 
 mined the tax upon said property from the valuation of the town- 
 ship assessor, made in 1869 
 
 The answer denies the material allegations in the petition, and 
 defendant insists there was a valid assessment and levy and the sub- 
 stantial requirements of law complied with. 
 
 There was a reference and a finding that there was no valid as- 
 sessment, and the taxes illegal and void. The finding was confirmed 
 by the court, a decree accordingly entered and defendants appeal. 
 
 SEEVERS, J. 
 
 III. It is urged that the plaintiff and other taxpayers were 
 deprived of the right to appear before the board of equalization, 
 which at that time was composed of the township trustees, and they 
 were required to meet for the performance of that duty on the first 
 Monday in May. Chap. 89, Laws of the Thirteenth General As- 
 sembly. The argument of the appellee is based on the assumption 
 that as the assessor of 1870 did not qualify until after the first 
 Monday in May the board of equalization could not have had before 
 them the assessment made by him. But as such assessor had no 
 duty to perform as to real property assessed in 1869, and could not 
 under the law assess the same, the assumption is not legally correct. 
 The assessment of 1869, together with all corrections made therein 
 by the board of equalization of that year, if any such there were, in 
 the absence of any showing to the contrary must be presumed to 
 have been in existence and in the custody of the county auditor at 
 20
 
 306 OFFICIAL ACTION IN TAXATION. 
 
 the time fixed by law for the meeting of such board in 1870. Such 
 books are public records, open to the inspection of all. There is no 
 showing made whether or not the board met on the appointed day, 
 but the presumption is, and must be under such circumstances, that 
 they performed their duty at the proper time required by law. It 
 must be further presumed, in the absence of any showing to the 
 contrary, that such board had before them the proper books and 
 papers to enable them to perform their duties. Such being the case, 
 the plaintiff was not deprived of the opportunity of having the as- 
 sessment of his property corrected, and he was not, therefore, de- 
 prived of any substantial right. 
 
 For the reasons stated, the decree of the Circuit Court will be 
 reversed, and a decree entered in this court, if counsel for appellant 
 so elect, in accordance with this opinion. 
 
 Reversed.
 
 CHAPTER VIII. 
 CONSTRUCTION OF TAX LAWS. 
 
 EDWARD A. CORNWALL, EXECUTOR, V. JAMES TODD. 
 
 Supreme Court of Errors of the State of Connecticut. September, 
 
 1871. 
 38 Connecticut 443. 
 
 Bill in Equity, by the petitioner as executor of the will of Thomas 
 D. Moss deceased, for an injunction to restrain the levy of a tax 
 warrant; brought to the Court of Common Pleas for New Haven 
 county, and reversed, on facts found, for advice. The case is suffi- 
 ciently stated in the opinion. 
 
 CARPENTER, J. The petitioner is the executor of the will of 
 Thomas D. Moss, deceased. In the year 1869, he made and re- 
 turned to the assessors of the town a list of the taxable property of 
 the estate, not in his own name as trustee, but in the name of 
 "Thomas D. Moss's estate." At that time the estate had not been 
 distributed or finally disposed of by the court of probate. There 
 was included in the list real estate and money at interest. Thomas 
 D. Moss at the time of his death resided in the fifth school district 
 in the town of Cheshire, where his widow still resides, and where 
 the real estate named in said list is situated. The petitioner re- 
 sides in the first school district. The fifth district laid a tax on 
 the list of 1869, including in the rate bill a tax against the estate 
 of said Moss on the real and personal property in said list. The 
 respondent is the collector of said tax. This petition is brought to 
 restrain him from collecting the tax on the sum of four thousand 
 dollars money at interest. 
 
 2. The petitioner in the next place claims that said personal 
 property was not legally taxable in the fifth school district, for the 
 reason that it was not the property of any person resident therein. 
 The statute, section 130, page 349, is as follows: "Whenever a dis- 
 trict shall impose a tax, the same shall be levied on all the real 
 
 307
 
 308 CONSTRUCTION OF TAX LAWS. 
 
 estate situated therein, and upon the polls and other ratable estate, 
 except real estate situated without the limits of such district, of 
 those persons who are resident therein at the time of laying such 
 tax." 
 
 The question practically resolves itself into this: Who, for the 
 purposes of taxation, is to be regarded as the owner of this prop- 
 erty? We think we may with propriety say that it belongs to the 
 estate. It does not belong to the executor, except in a limited sense. 
 
 It does not belong to. the heir before distribution; 
 
 and ordinarily the legatee has no claim until the debts are paid. 
 In common parlance we speak of the property as the estate; and 
 'of the different items of property as belonging to the estate. Anct 
 when the statute authorizes the executor to put the property in the 
 list in the name of the deceased person's estate, it regards the estate 
 as an intangible being or person capable of owning property. The 
 executor or administrator represents that being, and speaks and acts 
 for it, and in its name and behalf. 
 
 Again. So far as the property is concerned, and for the purposes 
 of collecting and paying debts, and doing justice by others, the acts 
 and doings of a deceased person while in life still continue to affect 
 the living. In a certain legal sense, therefore, and for certain pur- 
 poses, he still lives, and will continue to live until those purposes 
 are fully accomplished. As he is incapable ef acting for himself, 
 the executor or administrator represents him. The law requires this 
 property, while in a transition state from the dead to. the living, to 
 bear its proportion of the public burdens. For the purposes of tax- 
 ation, therefore, it must have a situs. None can be more appro- 
 priate than the place where the* deceased lived and died. I appre- 
 hend, therefore, the true rule to be this: The personal property of 
 a deceased person is taxable, during the settlement of the estate, in 
 the place of domicil of the deceased. When it comes into the pos- 
 session of the heir or legatee, it must be taxed in the place where 
 the heir or legatee resides. When it goes into the hands of a trus- 
 tee, under the will or otherwise, then the statute governs it, and it 
 must be taxed where the trustee resides, or where the person re- 
 sides for whose use it is held in trust, as the case may be. Such a 
 rule is in harmony with all the provisions of the statute, is easily 
 understood, can be easily applied, and will work no injustice. 
 
 The greatest and perhaps the only objection that can be urged 
 against this rule is, that we cannot say in strictness that the de- 
 ceased or his estate is a resident of the district. This objection as- 
 sumes that the statute is to be strictly construed. But we do not
 
 CORNWALL V. TODD. 309 
 
 think that the doctrine of strict construction should apply to it. 
 Statutes relating to taxes are not penal statutes, nor are they in 
 derogation of natural rights. Although taxes are regarded by many 
 as burdens, and many look upon them even as money arbitrarily and 
 unjustly extorted from them by government, and hence justify 
 themselves and quiet their consciences in resorting to questionably 
 means for the purpose of avoiding taxation, yet in point of fact no 
 money paid returns so good and valuable a consideration as money 
 paid for taxes laid for legitimate purposes. They are just as essen- 
 tial and important as government iself; for without them in some 
 form government could not exist. The small pittance we thus pay 
 is the price we pay for the preservation of all our property, and the 
 protection of all our rights. But there is not only a necessity for 
 taxation, but it is eminently just and equitable that it should be as 
 nearly equal as possible. Hence it is the policy of the law to re- 
 quire all property, except such as is especially exempted, to bear its 
 proportion of the public burdens. Not only so, but the law mani- 
 festly contemplates that property rated in the list shall be liable 
 for all taxes town and school district taxes alike. This is evident 
 from the provision that district taxes shall be laid on the town list, 
 with special provision for certain changes rendered necessary in 
 order to tax all the real estate situated within the district, and 
 none situated without, and also to assess the tax in each instance 
 upon the right person. In construing statutes relating to taxes, 
 therefore, we ought, where the language will permit, so to construe 
 them as to give effect to the obvious intention and meaning of the 
 legislature, rather than to defeat that intention by a too strict ad- 
 herence to the letter. 
 
 Again. The same process of reasoning which would exempt this 
 property from taxation in the district, on the ground now under 
 consideration, would also exempt it from all taxes. The 3d section 
 of the act, page 706, provides, that the assessors shall give public 
 notice "requiring of all persons in such town who are liable to pay 
 taxes &c." The words italicised have the same meaning in respect 
 to towns, that the words, "persons who are residents therein," have 
 in respect to school districts. It is not denied, however, that the 
 town may tax it, as the statute expressly provides for putting it 
 into the list. Another statute requires the district tax to be laid 
 on the town list; and there is no provision for a change in respect 
 to this kind of property. Property in the tax list is subject to dis- 
 trict taxes, unless otherwise provided by statute. As there is no
 
 310 CONSTRUCTION OF TAX LAWS. 
 
 special provision affecting this property, we think it was properly 
 taxed. 
 
 For these reasons we advise the Court of Common Pleas to dis- 
 miss the bill. 
 
 In this opinion the other judges concurred. 
 
 PEOPLE EX REL. OTSEGO COUNTY BANK, RESPOND- 
 ENT, V. BOARD OF SUPERVISORS OF OT- 
 SEGO COUNTY, APPELLANT. 
 
 Commission of Appeals of the State of New York. January, 187S. 
 
 51 New York 401. 
 
 Appeal from an order of the General Term of the Supreme Court 
 in the sixth judicial district, reversing an order of the Special 
 Term and granting a peremptory mandamus against the defendant. 
 
 In the year 1863, the relator had, as part of its capital, $65,000 
 invested in the stocks of the United States, and for the assessment 
 of that year paid upon such stocks taxes to the amount of $812.50, 
 besides collector's fees. In the" year 1864, it had, as part of its 
 capital, $91,000 invested in stocks of the United States upon which 
 it paid for the assessment of that year a tax of $6,670.30, besides 
 collector's fees. 
 
 In November, 1867, the relator, claiming that such taxes had 
 been unjustly paid on the ground that such stocks were exempt 
 from taxation, applied to the defendant under the act, chapter 938 
 of the Laws of 1867, to have such taxes audited and allowed, as 
 provided in said act. 
 
 The defendant refused to allow the claim, and then the relator, 
 upon affidavits and notice of motion, applied to the Special Term 
 of the Supreme Court for a mandamus to compel the allowance of 
 the claims, and the court ordered that the defendant, "without de- 
 lay, determine, audit, and allow the said claims, and levy the 
 amount thereof by tax, as required by said act, or show cause" at 
 a time named. 
 
 EARL, C. Prior to 1863, the taxation of banks formed under the 
 laws of this State, was regulated by chap. 456 of the Laws of 1857, 
 which provided that "the capital stock of every company, liable to 
 taxation, except such part of it as shall have been excepted in the 
 assessment roll or shall have been exempted by law, together with
 
 OTSEGO BANK V. SUPERVISORS. 311 
 
 its surplus profits or reserved funds, exceeding ten per cent of its 
 capital, after deducting the assessed value of its real estate and all 
 shares of stock in other corporations actually owned by such com- 
 pany which are taxable upon their capital stock under the laws of 
 this State, shall be assessed at its actual value, and taxed in the 
 same manner a? the other personal and real estate of the county.'' 
 Under this law the court of appeals held, in the People v. Commis- 
 sioners of Taxes and Assessments, (23 X. Y. 192), that stocks of 
 the United States, owned by banks, were not exempt from taxation. 
 That case was taken by writ of error to the Supreme Court of the 
 United States, and there the judgment was reversed (2 Black. 
 620) ; the court holding that that portion of the capital of a bank, 
 invested in the stock, bonds or other securities of the United States, 
 was not liable to taxation by State authority. That decision was 
 announced in March, 1863, and, doubtless for the purpose of avoid- 
 ing the effect of it, in April, 1863, the legislature passed an act 
 (chap. 240) which provided as follows: "All banks, etc., shall be 
 liable to taxation on a valuation equal to the amount of their capi- 
 tal stock paid in or secured to be paid in, and their surplus earn- 
 ings (less ten per cent of such surplus), in the manner now pro- 
 vided by law, deducting the value of the real estate held by such 
 corporation or association, and taxable as real estate." It was un- 
 der this statute that the taxes in question were imposed. The 
 courts of this State again held that the banks could be taxed "on a 
 valuation equal to the amount of their capital stock," notwith- 
 standing a portion of their capital stock was invested in United 
 States stocks; but the decisions were again reversed by the Su- 
 preme Court of the United States (Bank Tax Case, 2 Wall. 200), 
 that court deciding that the tax imposed under that law was still 
 a tax upon the property of the banks, and that so much of such 
 property as was invested in United States stocks was exempt from' 
 taxation. That decision was not announced until after the taxes in 
 question had been paid and collected. It follows that these taxes, 
 although voluntarily paid, were illegally exacted, and that the re- 
 lator had a just claim to have them refunded. But it, as well as 
 other banks similarly situated, was without any remedy by which it 
 could enforce repayment, and hence the act (chap. 938, Laws of 
 1867), entitled "An act providing for relief against illegal tax- 
 ation" in Herkimer and other counties was passed. 
 
 The first section of the act provides that the boards of super- 
 visors of the several counties mentioned are "authorized and em- 
 powered, upon the application of any party aggrieved, to hear and
 
 312 CONSTRUCTION' OF TAX LAWS. 
 
 determine any claim of an assessment for taxes made in their re- 
 spective counties upon United States bonds, stocks or securities, 
 any or all of them which by law are or have been exempt from tax- 
 ation, and to repay to the proper person the amount collected or 
 paid upon such assessment." Section 3, provides that, whenever 
 such claim shall be audited and allowed, the board of supervisors 
 shall levy the amount thereof upon the taxable property of the 
 county. 
 
 The first question to be determined is whether this act was merely 
 permissive or mandatory to boards of supervisors. To determine 
 this question, not only the language of the act, but the circum- 
 stances surrounding its passage and the object had in view, must be 
 considered. The highest judicial authority in the land had de- 
 cided that these taxes were illegally exacted. The relator, there- 
 fore, had a claim, based upon natural justice and equity, that the 
 taxes should be refunded, and as there was no way to compel the 
 counties to refund them this act was passed. The title of the act 
 shows that it was to provide "relief against illegal taxation." This 
 relief would be quite illusory if it were left to the absolute discre- 
 tion of the board of supervisors of any county to refund the taxes 
 or not, as it might see fit. The act recognizes the party who has 
 paid these taxes as an aggrieved party, who has a claim against the 
 county, which is to be audited and allowed like other claims against 
 the county. It is not to be presumed that the legislature intended 
 that the counties and towns which had the benefit of this illegal 
 taxation should have the option, through their supervisors to de- 
 termine whether they would do justice to the wronged tax-payers 
 by refunding the taxes illegally exacted, or not. The purpose of 
 the act, as well as the simplest justice, requires that we should 
 hold that it is mandatory upon the respective boards of supervisors, 
 unless there is something in the plain language used that forbids 
 such a construction. The words "authorized and empowered" are 
 usually words of permission merely, and generally have that sense 
 when used in contracts and private affairs; but when used in stat- 
 utes, they are frequently mandatory and imperative. In Dwarris. 
 p. 604, the rule is laid down as follows: "Words of permission 
 shall in certain cases be obligatory. Where the statute directs the 
 doing of a thing for the sake of justice, the word may means the 
 same thing as the word shall" 
 
 In E ex v. Barlow, (2 Salk. 609), it is said that where the stat- 
 ute directs the doing of a thing for the sake of justice or the pub- 
 lic good, the word "may" is the same as the word "shall." That
 
 OTSEGO BANK V. SUPERVISORS. 313 
 
 was a case under 14 Car. II, ch. 12 which gave power and author- 
 ity to the church-wardens, etc., to make an assessment to reimburse 
 the constables; that statute was held to be imperative, for the 
 reason that both the public and the constable had an interest in 
 having the authority exercised. 
 
 In The King v. The Inhabitants of Derby, (Skinner, 370), a 
 motion was made to quash an indictment found against the inhabi- 
 tants "for refusing to meet and make a rate to pay a constable's 
 tax." The ground for the motion was that the statute was not im- 
 perative, but merely they "may meet," etc. The court, however, 
 held may, in the case of a public officer, was tantamount to shall. 
 
 In Supervisors v. United States, (4 Wallace 435), a statute of 
 Illinois provided that the board of supervisors "may, if deemed ad- 
 visable, levy a special tax," etc. TMs language was held to be 
 peremptory, and not merely permissive. Mr. Justice SWAYNE sums 
 up the authorities on the question as follows: "The conclusion to 
 be deduced from the authorities is that where power is given to 
 public officers in the language of the act before us, or in equiva- 
 lent language, whenever the public interest or individual rights call 
 for its exercise, the language used, though permissive in form, is 
 in fact peremptory. What they are empowered to do for a third 
 person, the law requires shall be done. The power is given not for 
 their benefit, but for his. It is placed with the depositary to meet 
 the demands of right and to prevent a failure of justice. It is 
 given as a remedy to those entitled to invoke its aid, and who would 
 otherwise be remediless." 
 
 In The City of Galena v. Amy, (5 Wallace 705), where an act 
 amending a city charter said that the city council "may, if it be- 
 lieve that the public good and the best interests of the city require" 
 it, levy a tax to pay its funded debt, it was held a mandamus would 
 lie, at the suit of a judgment creditor, to make it levy the tax. 
 
 In The Mayor, etc., of the City of New York v. Furze (3 Hill 
 012), Chief Justice Nelson, after citing and commenting on many 
 cases, laid down the rule as follows: "Where a public body or offi- 
 cer has been clothed by statute with power to do an act which con- 
 cerns the public interest or the rights of third persons, the execu- 
 tion of the power may be insisted on as a duty, though the 
 phraseology of the statute be permissive merely and not peremp- 
 tory." 
 
 These authorities are abundant to show that the language used 
 in the act under consideration must be construed to be imperative, 
 and that the board of supervisors was commanded to hear and de-
 
 314 CONSTRUCTION OF TAX LAWS. 
 
 termine, audit and allow the relator's claim, and cause the tax 
 illegally paid to be refunded. 
 
 I am, therefore, of the opinion that the order should be affirmed, 
 with costs. 
 All concur. 
 Order affirmed. 
 
 TORREY V. INHABITANTS OF MILLBURY. 
 
 Supreme Judicial Court of Massachusetts. October, 1838. 
 21 Pickering 64. 
 
 SHAW, C. J., delivered the opinion of the court. 
 
 The plaintiff seeks in this action to recover back a sum paid as 
 a town tax upon a warrant of distress, upon the ground that the 
 tax was illegally and irregularly assessed. 
 
 The first objection to the irregularity of the assessment is, that 
 the assessors did not comply with the directions of the statute, in 
 making out the list containing the valuation and assessment of 
 polls and estates, inasmuch as it did not exhibit in distinct columns, 
 "the true value of real estate," "the reduced value of real estate," 
 and the same of personal estate, but only one column for real and 
 one for personal, headed "value." Revised Stat., c. 7, 15, 29, 30. 
 The Revised Statutes in the sections cited, require that the lists, 
 amongst other particulars, shall distinguish the "true value," and 
 "reduced value." The question is, whether this irregularity renders 
 the valuation and assessment void, so that each person taxed may 
 take advantage of it, and recover back the amount paid. 
 
 In considering the various statutes regulating the assessment of 
 taxes, and the measures preliminary thereto, it is not always easy 
 to distinguish which are conditions precedent to the legality of the 
 tax, and which are directory merely, and do not constitute condi- 
 tions. One rule is very plain and well settled, that all those meas- 
 ures, which are intended for the security of the citizen, for ensur- 
 ing an equality of taxation, and to enable every one to know, with 
 reasonable certainty, for what polls and for what real and personal 
 estate he is taxed, and for what all those who are liable with him 
 are taxed, are conditions precedent, and if they are not observed he 
 is not legally taxed, and he may resist it in any of the modes au- 
 thorized by law for contesting the validity of the tax.
 
 TOKEEY V. MILLBUHY. 315 
 
 But many regulations are made by statute, designed for the in- 
 formation of assessors and officers, and intended to promote method, 
 system and uniformity in the modes of proceeding, the compliance 
 or non-compliance with which, does in no respect affect the rights 
 of tax-paying citizens. These may be considered directory; officers 
 may be liable to legal animadversion, perhaps to punishment, for 
 not observing them, but yet their observance is not a condition 
 precedent to the validity of the tax. On consideration, the Court 
 are of opinion, that the requirement in the statute, in regard to 
 "reduced value," is of the latter character. 
 
 We take it to be clear, that the requisition in question is founded 
 on the common custom of forming a column of "reduced value," 
 which had existed before the statute, adopted for the ease and con- 
 venience of computation in apportioning the taxes. But the "re- 
 duced value" is of course a fixed proportion of the true value, as a 
 half, or quarter, 10 per cent or the like. The true value is first 
 estimated by the assessors in the manner provided by law, that is, 
 by returns, or, in default of returns being made, by appraisement, 
 and then the column of reduced value is found by computation, 
 upon a uniform scale of reduction. It follows therefore as a neces- 
 sary consequence, that whether there be a column of reduced value 
 or not, makes no difference as to the actual amount of property, for 
 which each one on the list is assessed, or the rate which each and 
 every one will have to pay. It is a requisition merely affecting the 
 mode of framing the tax list, not affecting in any degree the rights 
 of any tax-payer, and therefore the Court are of opinion, that it is 
 directory, not a condition precedent, and that the failure to comply 
 with it, on the part of the assessors, did not render the tax illegal 
 or void. 
 
 4. Another exception to the regularity of the tax paid by the 
 plaintiff is, that it included $100 to build a town road, recently 
 laid out by the selectmen. It appears by the report, that although 
 there was a warrant "to see if the town would accept the road re- 
 cently laid out, etc.," and though there was a vote to accept, yet 
 that no location of the road with the boundaries and admeasure- 
 ments thereof, had been made by the selectmen, and no report of 
 such laying out, with the boundaries and admeasurements thereof, 
 had been filed in the office of the town clerk, seven days before the 
 meeting. These preliminary proceedings are required by the Re- 
 vised Statutes, c. 24, 69, and, a report from the selectmen was 
 required by the former statute. St. 1816, c. 67, 1. So that
 
 316 CONSTRUCTION OF TAX LAWS. 
 
 whether the vote was before or after the Revised Statutes, which is 
 left a little uncertain on the report, we think there were no pro- 
 ceedings of the selectmen for the town to act upon, and therefore 
 the vote of the town was inoperative and void. The vote to raise 
 money by a tax for the building of this road, was consequently 
 premature and invalid, and the plaintiff was not bound to pay it. 
 
 But as this is an action of assumpsit, to recover back money 
 which the plaintiff was not liable to pay, and as it is entirely prac- 
 ticable to distinguish that part of the tax which was valid from 
 that which was void, the Court are of opinion, that the plaintiff is 
 entitled to recover back that part of the money paid by him which 
 was assessed upon him as his share of the $100, assessed on account 
 of the road. 
 
 As the warrant of distress was rightly issued for the other part 
 of the tax, which the plaintiff wrongfully refused to pay, he has no 
 right to recover back the costs attending the service of the warrant 
 of distress. 
 
 PRICE V. MOTT. 
 
 Supreme Court of Pennsylvania. 1866. 
 52 Pennsylvania State 315. 
 
 This was an action of trespass q. c. f., etc., commenced Septem- 
 ber 5th, 1859, by Oscar H. Mott against Gilbert E. Palen, George 
 W. Northrop and William Price. 
 
 In 1825 Mordecai Roberts owned a title by warrant to a tract of 
 unseated land. A survey of the land was made December 28th, 
 1852, returned and accepted. On the 12th of June, 1854, the land 
 was sold for taxes to Mott, the plaintiff, who received the treas- 
 urer's deed therefor. On the 8th of March, 1856, Mott paid taxes 
 on the land for 1854 and 1855. John T. Cross, on the 25th of 
 April, 1856, became owner of an undivided interest in the land, 
 and for the purpose of redeeming it, on the llth of June, same 
 year, paid to the treasurer the amount of taxes for which it was 
 sold, costs and penalty, but did not pay the taxes which Mott had 
 paid after his purchase. Palen and Northrop derived their title by 
 conveyance from Cross, and from some other heirs of Roberts. 
 There was proof of cutting and carrying away timber by Price, but 
 the principal question was title to the land. The court (Barrett, 
 P. J.), amongst other things, charged:
 
 PRICE V. MOTT. 317 
 
 "Did Cross do all that the law required of him? We think not. 
 The act of 8th of May, 1855, declares, that 'in addition the owner 
 shall pay the taxes which the purchaser shall have paid, which have 
 accrued since the sale, and before the time allowed to redeem has 
 expired/ The act is positive in its terms, and applies as well to 
 the sales of 1854 as to any subsequent sales. On the 8th day of 
 March, 1856, before any offer was made to redeem, the purchaser 
 paid into the office the taxes which had accrued for the years 1855 
 and 1856. The owner was bound to pay that amount in addition 
 to what he did pay. It is no sufficient answer to say that he did 
 not know of the existence of the Act of Assembly. He was bound 
 to know the law. He did not comply with it, and the jury are in- 
 structed that the attempted redemption was incomplete, and there- 
 fore void." 
 
 There was a verdict against Price for $100. 
 
 The above portion of the charge was assigned for error. 
 
 The opinion of the court was delivered May 15th, 1866, by 
 
 WOODWARD, C. J. We are of opinion that the redemption was 
 effectual. It was made within two years after the tax sale waa 
 made, by one whose interest entitled him to redeem, and he paid 
 all the redemption-money which the treasurer demanded. 
 
 When an owner of unseated lands presents himself at the treas- 
 urer's office and offers to pay taxes or redeem lands from tax sales, 
 the treasurer, as a public officer, has duties to perform, the neglect 
 of which cannot fairly be charged against him who is doing for 
 himself all that the law enjoined. Baird v. Cahoon, 5 W. & S. 540. 
 If the taxes which Mott had paid for the years 1854 and 1855 
 ought to have been charged to Cross as part of the redemption- 
 money, it was the treasurer's fault that they were not. They ap- 
 peared upon the treasurer's books, and he had what Cross had not 
 notice that they had been paid. It was his duty, therefore, to de- 
 mand them, and Cross is not to be damaged by his neglect: Bull 
 \. Tempi-ins, 11 Wright 359. 
 
 But we have great doubts whether these taxes were demandable 
 under the Act of 8th of May, 1855, Purd. 99T. There is nothing 
 in the terms of the act to compel a construction which would give 
 it retroactive effect, and we always construe statutes as prospective 
 and not retrospective, unless constrained to the contrary course by 
 the rigour of the phraseology. These taxes were assessed and paid 
 before the enactment. When they were paid the law did not re- 
 quire them to be added to the redemption-money, and though the 
 redemption-money was paid more than a year after the enactment,
 
 318 CONSTRUCTION OF TAX LAWS. 
 
 it is by no means clear that it was the treasurer's duty to add them 
 then. But if it was, his official neglect cannot invalidate Cross's 
 act, however it may ground a liability of the treasurer to Mott. 
 And a valid redemption defeated the plaintiff's title altogether, so 
 that, quite irrespective of all the other questions upon the record, 
 he ought not to have been permitted to .recover. 
 
 The judgment is reversed, and a venire facias de novo awarded. 
 
 DREXEL & CO. V. COMMONWEALTH. 
 
 Supreme Court of Pennsylvania. July, 186S. 
 46 Pennsylvania State 31. 
 
 READ, J. The Act of 16th of May, 1861, requires all stock, bill 
 and exchange brokers and private bankers, on or before the first 
 Monday of December next, and on or before the same day of each 
 year thereafter, to make a written return, under oath or affirmation, 
 to the auditor-general of this Commonwealth, in which return shall 
 be exhibited and set forth the full amount of receipts from com- 
 missions, discounts, abatements, allowances, and all other profits 
 arising from the business during the year ending the thirtieth day 
 of November preceding the date of such annual returij, and shall 
 forthwith pay into the state treasury three per centum on the ag- 
 gregate amount contained in such return for the use of the Com- 
 monwealth. The third section imposes a penalty of $1,000 for every 
 neglect or refusal to make such return. Drexel & Company were 
 stock, bill and exchange brokers and private bankers, and neglected 
 and refused to make any return in 1861. The court below decided 
 they were liable to the penalty, and gave judgment for the Com- 
 monwealth. The act clearly intended to levy a tax of three per 
 centum on the profits or income of the business, and was not meant 
 to tax capital. Profits must necessarily be the net profits of the 
 business, and the Commonwealth was to receive of them three per 
 cent. It was in fact a tax upon the income of the business in 
 which the defendants were engaged. The English income tax and 
 the United States income tax are based upon the incomes received 
 in preceding years. The present United States income tax is 
 laid upon the incomes received in the year 1862, and the act of 
 Congress of the 5th of August. 1861 (12 Stat. at Large, 309), ex- 
 pressly declare? that "the tax herein provided shall be assessed
 
 DREXEL & CO. V. COMMONWEALTH. 319 
 
 upon the annual income of the persons hereinafter named, for the 
 year next preceding the first of January, 1862, and the said taxes, 
 when so assessed and made public, shall become a lien upon the 
 property or other sources of said income for the amount of the 
 same, with the interest and other expenses of collection until paid." 
 
 It is clearly therefore perfectly constitutional as well as expedi- 
 ent, in levying a tax upon profits or income, to take as the measure 
 of taxation the profits or income of a preceding year. To tax is 
 legal and to assume as a standard the transactions immediately prior 
 is certainly not unreasonable, particularly when we find it always 
 adopted in exactly similar cases. The tax is graduated upon each 
 individual upon his individual receipts. 
 
 The penalty imposed upon all persons refusing or neglecting to 
 give a list as required by the Act of Congress (12 Stats, at Large, 
 235), is $100, whilst our penalty is $1,000 upon a similar offence, 
 by a particular class of moneyed operators. The objection that 
 the penalty is ex post facto is not founded in fact, for it is imposed 
 for the non-performance of a duty long after the passage of the act. 
 
 The court below have confined the operation of the act in the 
 present case to the period between its passage and the 30th of No- 
 vember, 1861, during which time it was clearly the duty of the 
 defendants to keep such accounts as might enable them to make the 
 return required by law. As no return of any kind was made, it is 
 unnecessary for us to say whether we might not have been still 
 more lenient as to the time to be comprised in the return, if a 
 return had been actually made, and a good reason assigned why it 
 could not be made more explicit, and in strict conformity to the re- 
 quirements of the law 
 
 The judgment is affirmed.
 
 CHAPTER IX. 
 CURING DEFECTS IN TAX PROCEEDINGS. 
 
 McCEEADY V. SEXTON & SON. 
 
 Supreme Court of Iowa. June, 1870. 
 29 Iowa 356. 
 
 COLE, Ch. J. 
 
 VI. It was objected that the evidence of the record of sales, 
 certificates, etc., were incompetent, because the tax deed was con- 
 clusive as to those and other facts. On the other hand it is 
 objected that the deed is neither conclusive nor prima facie 
 evidence of any but the three facts specified. The latter objec- 
 tion is based upon this reasoning, to-wit: so much of section 
 784 as declares the treasurer's deed conclusive evidence that all 
 the prerequisites of the law to make a good and valid sale, and 
 vest the title in the purchaser, were done; except as to the three 
 particulars: the liability of the land to taxation, the non-pay- 
 ment of taxes, and non-redemption from sale, is unconstitutional 
 and void; that the declaration that the deed shall be conclusive 
 evidence being inoperative, and there being no statutory declaration 
 that it shall be prima facie evidence, the deed stands as at common 
 law, and proof must first be made of the facts authorizing it, 
 before the deed itself can be introduced. 
 
 The power of the legislature to declare that the tax deed shall 
 be conclusive evidence that all the prerequisites of the law were 
 complied with, has never been directly adjudicated by this court. 
 Such power is denied, as being in violation of that clause of the 
 constitution of our state (and common to all state constitutions) 
 which declares that "no person shall be deprived of life, liberty 
 or property without due process of law." Art. 1-, section 9. 
 
 Let us now examine the question more carefully and critically 
 in the light of both principle and precedent. The right of tax- 
 ation and the right of eminent domain are the highest sovereign 
 rights. They are essential to and necessarily inhere in every 
 
 320
 
 M'CREADY V. SEXTON & SON. 321 
 
 sovereign power. They are different rights and are differently 
 exercised, and though absolute and sovereign in their character, 
 they are nevertheless to be exercised only in accordance with cer- 
 tain fundamental principles. And although the taking of property 
 by taxation is not strictly, or in its technical sense, the taking of 
 property by due process of law, yet it has never been held or 
 claimed that the legislature might confiscate property for the 
 non-payment of taxes thereon. A process prescribed by law, has 
 ever been held necessary in order to the rightful exercise of the 
 taxing power. No person has ever claimed, and certainly no 
 court has ever decided, that it would be competent for a legislature 
 to declare that if the owner of real estate failed to pay the pro- 
 portion of taxes due thereon, on or before the date named, that 
 any other person might pay the tax and thereby become owner of 
 the land. But, on the contrary, it has ever been held, that certain 
 steps must be taken before the right to demand the tax, or to sell 
 the property for the non-payment thereof arose. These acts, it, is 
 true, are such as are absolutely or relatively necessary in order 
 to ascertain and x the proper amount of taxes chargeable to each 
 item of property. These steps while they are not by the books 
 technically "due process of law," nevertheless, are very analogous 
 to the steps ordinarily- attending judicial proceedings in rem. 
 
 There is, first, the listing and assessing of the property. These 
 may be likened to the seizure of the property by judicial process, 
 whereby the jurisdiction over the rem attaches. Then, secondly, 
 there is the levy of the tax upon the property, in proportion to its 
 value, so much per centum. This may be likened to a judgment 
 in rem, condemning the property to the payment of the claim for 
 which it was seized. Then, thirdly, there is the tax warrant, or an 
 express statutory provision, authorizing the collector to sell the 
 property for the payment of the taxes thus levied upon it. This 
 is very like the order or execution issued by the court for the 
 sale of the rem, which had before been seized and condemned by it. 
 Then, fourthly, there is the sale of the property by the collector 
 under the authority conferred by the tax warrant under the statute, 
 or by the statute itself directly. This is like the sale of the rem 
 by the officer under the order or execution issued by the court. 
 These, it must readily be seen, are essential to the exercise of the 
 taxing power; and no revenue law could be of practical effect 
 without them; and it may safely be said that every revenue law 
 contains them. This listing is necessary in order to describe and 
 identify the property; the assessing , in order to ascertain its value; 
 21
 
 322 CURING DEFECTS IN TAX PROCEEDINGS. 
 
 the levy, in order to fix the proportion or rate of the tax; the tax 
 warrant, or statutory provision, in order to authorize some person 
 to receive the taxes and to sell in default of payment; and the sale 
 in order to contract the property to one who will pay the taxes due 
 upon it. These are essential and jurisdictional, and every other 
 provision of every other revenue law may safely be said to be 
 directory only, and not essential to the exercise of the taxing 
 power. 
 
 The legislature may prescribe the time or manner in which these 
 essential and jurisdictional acts shall be done, but it cannot, either 
 constitutionally, or in the nature of things, provide for the passing 
 of title to property for the non-payment of taxes without them. 
 As to the time or manner in which they shall be done, the discre- 
 tion of the legislature is absolute and supreme, and cannot be 
 judicially controlled or interfered with. Having the right to pre- 
 scribe the manner, it may also rightfully provide that a failure to 
 comply with its directions as to the manner shall not defeat the 
 end; or that no person shall question the legality of the manner; 
 or that any subsequent fact or act shall be either prima facie or 
 conclusive evidence that the law as to time or manner was com- 
 plied with. In other words, the legislature being supreme, may 
 prescribe the time and manner of doing the act, and may make 
 that, or any other time and manner which the persons doing it 
 may adopt, legal and sufficient. But this power of the legislature 
 extends only to those things over which it is supreme. As to the 
 essential and jurisdictional facts, so to speak, which the legislature 
 cannot annul or change, it cannot excuse the non-performance of 
 them, and, of course, cannot make the doing of any other thing 
 a substitute for them or conclusive evidence of their being done. 
 To restate the proposition succinctly: whatever the legislature is 
 at liberty to authorize or not, it may waive or estop denial; but 
 not so as to that which it must require. 
 
 It follows, therefore, upon principle, that it is not competent 
 for the legislature to make the tax deed conclusive evidence of a 
 compliance with the essential prerequisites we have above named. 
 That such an enactment is in conflict with the constitutional pro- 
 vision above quoted. That it deprives a man of his property without 
 due process of law. Not that the exercise of the power of taxation 
 is or is not due process of law; but that, in a suit between the tax 
 purchaser, or his vendee, and the owner, which is a judicial investiga- 
 tion, "due process of law" means a trial; and a trial involves the 
 right of both parties to produce evidence. If one party only is
 
 M'CREADY V. SEXTON & SON. 323 
 
 allowed to produce evidence, and the other is estopped or con- 
 cluded from producing his, such denial is effectually depriving him 
 of his property without due process of law. Let us turn now to 
 precedent or. authority. 
 
 Judge Oooley, in his recent and most excellent "Treatise on Con- 
 stitutional Limitations," says (p. 368) : "But there are fixed bounds 
 to the power of the legislature over this subject (rules of evidence) 
 which must not be exceeded. As to what shall be evidence, and who 
 shall assume the burden of proof, its power is unrestricted, so long 
 as its rules are impartial and uniform; but it has no power to 
 establish rules, which, under pretense of regulating evidence, alto- 
 gether prohibit a party from exhibiting his rights. Except in those 
 cases which fall within the familiar doctrine of estoppel at the com- 
 mon law, or other cases resting upon similar reasons, it would not 
 be in the power of the legislature to declare that a particular item 
 of evidence should preclude a party from establishing his rights in 
 opposition to it. In judicial investigations, the law of the land 
 requires a trial; and there is no trial if only one party is suffered to 
 produce his evidence. A statute making a tax deed conclusive 
 evidence of a complete title, and precluding the original owner from 
 showing its invalidity, would therefore be void as not a law regulat- 
 ing evidence, but an unconstitutional confiscation of property. 
 Groesbeck v. Seeley, 13 Mich. 329; Case v. Dean, 16 Id. 13; White 
 v. Flynn, 23 Ind. 46; Smith v. Cleaveland, 17 Wis. 556; Allen v. 
 Armstrong, 16 Iowa 508; Wantlan v. White, 19 Ind. 470; People v. 
 Mitchell, 45 Barb. 212." 
 
 In The People ex rel. etc. v. Mitchell et al., 35 N. Y. 55, it was 
 held by a majority of the court (three judges dissenting) that the 
 legislature might, by a curative act, make certain affidavits, taken 
 under a previous act, conclusive evidence of certain facts stated in 
 them, notwithstanding their defects. The court say, that the purpose 
 is apparent from the further provisions, that "no defects in any 
 such affidavits shall invalidate such proof," and that "the bonds 
 shall be valid and binding on said town, without reference to the 
 form or sufficiency of such affidavits." This case simply construes 
 the curative act, and holds, in effect, that the failure to comply with 
 the original act shall not defeat the right. See S. C. in 45 Barb. 208. 
 It was evidently competent for the legislature to effect the result 
 in two ways, either by declaring the bonds valid and binding, not- 
 withstanding the failure to comply with all the forms of the law, or 
 to make the affidavits conclusive proof of compliance therewith.
 
 324 CURING DEFECTS IN TAX PROCEEDINGS. 
 
 See, as to power of legislature to pass curative and retroactive laws, 
 The State etc. v. Squires, 26 Iowa 340, and authorities there cited. 
 
 The case of Smith v. Cleaveland, 17 Wis. 55G, appears to hold 
 that it is competent for the legislature to make the tax deed conclu- 
 sive 1 ; but the opinion expressly states that "the objections taken, and 
 for which the plaintiff seeks to impeach the title of the defendants, 
 go merely to the regularity of the proceedings. The groundwork and 
 essence of the transactions which resulted in the execution and 
 delivery of the deed remained untouched." It may he remarked that 
 Judge Cooley in his Constitutional Limitations, note to page 369, 
 cites this case as showing how far "the legislature may make the tax 
 deed conclusive evidence that mere irregularities have not intervened 
 in the proceedings." If the language of the opinion goes further than 
 this, it is, as to such excess, doubtless, but mere dictum. There is 
 referred to in the opinion and appended to the report in this case in 
 the form of a note, an opinion of MILLER, IT. S. district judge for 
 the district of Wisconsin, in the case of Lord v. The Milwaukee & 
 Mississippi Eailroad Company, seeming to sustain the broad lan- 
 guage used by DIXON, C. J., in the main case; but the facts in the 
 last case are not given so as to enable the reader to determine 
 whether, 'as to its full extent, it is adjudication or partly dictum. 
 But in the subsequent case of Smith v. Smith, etc., 19 Wis. 615, 
 Dixon, C. J., in delivering the opinion of the court says : "The 
 legislature have power to prescribe the form of proceedings in the 
 assessment and collection of taxes and, in matters of form, may 
 declare what steps shall or shall not be essential to the validity of a 
 tax sale or tax deed," and cites in support thereof Smith v. Cleave* 
 land, supra. In view of all the facts and surroundings of the case, 
 we do not think it can be recognized as deciding that it is competent 
 for the legislature to make a tax deed conclusive evidence of title 
 or of a compliance with the essential prerequisites of the statute. We 
 have selected the foregoing cases, as being the strongest found in 
 the reports within our reach, tending to sustain the power of the 
 legislature to declare an act or instrument conclusive evidence of 
 a legal right or title. None of them decide in favor of such power. 
 Nor do the following cases so decide; but we have not space for an 
 extended statement or review of them: Rhinehardt v. Schuyler, 2 
 Gilmn. 473; Hannel v .Smith. 15 Ohio 134; The People etc. v. The 
 Mayor, etc., 10 Wend. 398; Gwynne v. Neiswanger, 18 Ohio 400; 
 Steadman v. Planters' Batik, 2 Eng. (Ark.) 424. 
 
 In W anil an v. White, 19 Ind. 470, which was a proceeding by 
 habeas corpus in behalf of an enlisted minor, who had taken the
 
 M'CREADY V. SEXTOX & SON. 325 
 
 usual oath of his age. His discharge was resisted on the ground 
 that the act of congress provided that "the oath of enlistment taken 
 by the recruit shall be conclusive as to his age." The court held, 
 "that it is not competent for the legislative power to declare what 
 shall be conclusive evidence of a fact." And in Gavin v. Sherman, 
 23 Ind. 32, the court, in passing upon a statute which declared that 
 the "tax deed shall be conclusive evidence of the truth of all facts 
 therein recited," held, that it should be strictly construed; and 
 expressly waived deciding the question whether the legislature has the 
 power to pass such a statute. The court do not in anyway refer 
 to Wanttan v. White, supra. But at the same tenn, the court, in the 
 case of White v. Flynn, 23 Ind. 46, use the following language: 
 "The statute enacts that the deed shall be conclusive evidence of 
 the facts recited, etc. Now, we do not suppose the legislature could 
 make such an enactment. See Wantlan v. White, 10 Ind. 470." 
 
 In Groesbeck v. Seeley, 13 Mich. 329; Quinlon v. Rogers, 12 id. 
 169; and Case Dean et al., 16 id. 12, a statute making a tax deed 
 conclusive evidence of title was held absolutely void, as being in con- 
 flict with the constitutional provision guaranteeing due process of law 
 for the protection of life, liberty and property. 
 
 We conclude, therefore, upon principle as well as upon precedent 
 and authority, that the legislature does not possess the power to de- 
 clare the tax deed to be conclusive evidence of compliance with those 
 matters which are essential to the exercise of the taxing power. 
 But as to the non-essentials or matters merely directory, such power 
 may exist, and the deed become conclusive of their due perform- 
 ance. 
 
 VII. The further question then arises, can the tax deed be 
 received as -priina facie evidence of compliance with the essential pre- 
 requisites as to which, and others the statute declares it to be con- 
 clusive evidence? As we have already seen, it is competent and 
 constitutional for the legislature to make the tax deed prima facie 
 evidence of its own validity, but they have not the constitutional 
 power to make it conclusive evidence. 
 
 In this case, by the section of the act under consideration, the legis- 
 lature undertook to declare two things: first, that the tax deed should 
 be evidence of its own validity; and second that it should be conclu- 
 sive, that is that no evidence should be received to contradict it. 
 This latter declaration, so far as it applies to matters material and 
 essential to the taxing power, as we have seen, it was not competent
 
 326 CUEING DEFECTS IN TAX PROCEEDINGS. 
 
 for the legislature to do, and hence, as to such matters, the word 
 "conclusive" must be regarded as stricken out. The tax deed would 
 thereby be made evidence, but not conclusive evidence of those facts. 
 
 It follows from these conclusions, that the judgment of the dis- 
 trict court, for the error in the instructions of the court on the subject 
 of fraud, and the finding of the jury thereon, must be reversed. 
 
 Reversed. 
 
 WRIGHT, J., dissenting. 
 
 As to the effect of tax deeds see in Chapter XI under III, .Effect of Tax 
 Deeds. 
 
 tS THE MATTER OF THE CONFIRMATION OF THE 
 REPORT OF THE COMMISSIONERS OF ASSESSMENT 
 FOR GRADING AND PAVING AND OTHERWISE IM- 
 PROVING SACKETT, DOUGLAS AND DE GRAW 
 STREETS IN THE CITY OF BROOKLYN. 
 
 Court of Appeals of New York. May, 1878. 
 74 New York 95. 
 
 EARL, J. The assessment in question was laid for the expense 
 of grading and paving De Graw and Douglas streets, and for grad- 
 ing, paving, ornamenting and otherwise improving Sackett street, 
 in the city of Brooklyn. It is assailed on the ground that the legis- 
 lation which purports to authorize the improvements was unconsti- 
 tutional and void; and also upon the ground that the proceedings 
 taken under the laws were not in conformity to them and were 
 irregular and unauthorized. 
 
 It cannot well be said that the Legislature transcended its power 
 in the character of these street improvements. They were somewhat 
 extraordinary, and very expensive and extravagant. They may have 
 been hurtful rather than beneficial, but the legislature has power 
 to determine where and when streets shall be constructed, and their 
 width and mode of improvement, and the courts cannot sit in review 
 upon its action in such matters. 
 
 Notwithstanding the defects in the three acts which have now 
 been referred to, the park commissioners proceeded with the improve- 
 ment of the three street? last named, and on the 1st day of June,
 
 MATTER OF SACKETT STKEET. 327 
 
 1874, had nearly completed the same. On that day an act was passed 
 (ch. 588), entitled "an act to provide for the completion and improve- 
 ment of Sackett, Douglas and I)e Graw streets, in the city of Brook- 
 lyn, and also for the collection and payment of all moneys expended, 
 or indebtedness incurred by said city on account of the improvement 
 of such streets by the Brooklyn park commissioners/' 
 
 We are of opinion that this assessment was authorized by the act 
 of 1874, and that that act was a valid exercise of legislative power. 
 
 Section two of the act of 1874 gives ample authority to make the 
 assessment in question. Here was an expense incurred by public 
 officers, under acts supposed to be valid, in the improvement of public 
 streets. The expense was to be either a tax upon the whole city or 
 upon the property owners benefitted, and it cannot be doubted that 
 the Legislature had the power to determine how the assessment 
 should be made. The Legislature can adopt and sanction an improve- 
 ment or an expenditure which it could previously authorize. It may 
 authorize an assessment for an improvement, either before or after 
 the improvement is made, as in its judgment is deemed best. A 
 complete system was provided for the imposition of the assessment 
 by the orderly methods usually resorted to, and it is impossible to 
 perceive how the power of the Legislature to enact section two can 
 be successfully questioned. 
 
 I have thus as briefly as I could, and yet with the care the impor- 
 tance of the case demands, examined these crude and imperfect acts, 
 and I am of opinion that none of the objections now made to the 
 assessment are well founded and that the order appealed from muit 
 be affirmed, with costs. 
 
 All concur. 
 
 Order affirmed. 
 
 As to legislative provision for reassessment, see note to Matter of Mr 
 Pherson, 104 N. Y. 306, infra.
 
 328 (JUK1NG DEFECTS IN TAX PBOCEBDINGS. 
 
 PAKISH V. GOLDEN. 
 
 Court of Appeals of New York. September, 1866. 
 So New York 462. 
 
 MORGAN, J. There is an omission in the affidavit annexed to the 
 assessment roll which is supposed, by the appellant's counsel, to be 
 fatal to the validity of the warrant under which the collector seized 
 the plaintiff's property. The statute prescribes a certain form of 
 affidavit, and that form has been followed except in one particular. 
 The statute requires the assessors, among other things, to make 
 an affidavit "that the assessment roll contains a true statement of 
 the aggregate amount of the taxable personal estate of each and 
 every person named in such roll over and above the amount of debts 
 due from each person respectively, and including such stocks as are 
 otherwise taxable (and such other property as is exempt 'by law from 
 taxation) at the full and true value thereof." (Laws of 1851, p. 334, 
 8.) The words omitted are contained in brackets, and the question 
 is, whether they are material in order to give the supervisors juris- 
 diction to levy the tax. For, if the supervisors had jurisdic- 
 tion to issue the warrant, this action cannot be maintained. 
 According to the decision of the court in Van Rensselaer v. Whitbeck 
 (1 N. Y. 517), if the assessment roll is not complete and in a condi- 
 tion to be delivered to the board of supervisors they have no jurisdic- 
 tion to issue a warrant for the collection of taxes. 
 
 It is obvious, however, that the omission of the assessors to comply 
 with an important provision of the statute regulating their duties 
 cannot be regarded as a jurisdictional defect without subjecting 
 public officers to unnecessary vexation and embarrassment. In my 
 opinion, the principle of that case (Van Rensselaer \. Whitbeck) 
 ought not to be extended. If every omission is to be regarded as a 
 jurisdictional defect, then it is apparent that the whole tax is 
 vitiated wherever such an omission is discovered. The supervisors, 
 must necessarily, enter upon the discharge of their duties and examine 
 the assessment rolls of all the towns. Defects in the assessment rolls 
 of one town, or in the form of the affidavits endorsed thereon, will 
 not have the effect of stopping their proceedings. The public inter- 
 ests require them to proceed and make the necessary corrections, 
 when it can be done without interfering with the rights of the tax 
 payers. Having entered upon their duties, I think it would be compe- 
 tent for them to send for the assessors of any one town to come 
 before them and supply omissions and make the necessary affidavits, 
 where the omission occurred through accident or mistake.
 
 PARISH V. GOLDEN. 329 
 
 Now, it does not appear in this case that the assessors neglected 
 any duty imposed upon them in respect to the assessment of the pej> 
 sonal property of the town of Oswegatchie. For aught that appears, 
 they excluded from the valuation such as was exempt by law from 
 taxation. It does not appear, affirmatively, that the assessors neglected 
 any duty which was necessary to the protection of the rights of the 
 tax payers of Oswegatchie. The case is, therefore, clearly distinguish- 
 able from Van Rensselaer v. Whitbeck, where it appeared, by the cer- 
 tificate of the assessors, that they had estimated the real estate of the 
 town of Greenbush not according to its value, but as "they deemed 
 proper," and the personal not "according to their best information 
 and belief of its value," "but according to the usual way of assess- 
 ing.'' Nothing of the kind appears in the case at bar; and I think 
 it ought not to be assumed that the assessors failed to make a legal 
 estimate of the valuation of the property of the town of Oswegatchie, 
 for the purpose of invalidating the tax warrant. The usual presump- 
 tion as to public officers is, that they have done their duty. And I 
 am clearly of the opinion that the omission of the assessors to certify 
 or make an affidavit as to some particular required of them in relation 
 to the assessment, is not to be regarded as a jurisdictional defect. If 
 they have proceeded legally, an informal certificate or affidavit ought 
 not to be regarded as fatal to the jurisdiction of the supervisors to 
 proceed and levy the tax, and the court will not presume that the 
 assessors have neglected any duty imposed upon them by statute from 
 their mere omission to certify it in their affidavit indorsed on the 
 assessment roll. If it contains substantially the matters required 
 by statute, the defect may be disregarded. If the omitted part is 
 material, it may be supplied and corrected. The proceedings of the 
 board of supervisors cannot, I think, be interrupted by the neglect 
 of the assessors of a particular town to make a formal verification 
 of the assessment roll within the time limited by statute for that 
 purpose; and if the duty has been discharged, the public interests re- 
 quire that the necessary verification should be allowed to be subse- 
 quently made. In case of willful neglect of any assessor to make 
 the necessary verification, he will incur a forfeiture of fifty dollars. 
 (1 E. S., Edm. ed., 366, 29.) The object of the verification is 
 to secure fidelity on the part of the officers, and this may be en- 
 forced by a prosecution for the penalty. 
 
 I have not thought it necessary to examine into the question 
 whether the omission of the assessors to state in their affidavit that 
 they had excluded from valuation property exempt by law from 
 taxation, was a mere repetition of what they had already stated, or
 
 330 CUEING DEFECTS IN TAX PROCEEDINGS. 
 
 whether it related to real or personal property, or both. The stat- 
 ute exemption applies to both real and personal estate (1 R. S., 
 Edm. ed., 360, 4) ; although the language 'of the affidavit seems 
 to apply only to personal property. 
 
 I think we ought to place our decision in this case upon a 
 broader foundation. This affidavit is in the nature of a verification 
 of the assessment roll, and comes in the place of a certificate of the 
 regularity of the assessment. (Laws of 1851, 344, 8.) The olct 
 certificate did not contain the words omitted in this affidavit. (1 
 R. S., 394, 26.) It may doubtless be regarded as repetitious, as 
 the assessors had already stated that the assessment roll contained 
 a "true statement of the aggregate amount of the taxable personal 
 estate." When it is added that they had also excluded non-taxable 
 property from their valuation, it is substantially the same thing in 
 a different form. But if it is a material statement, the omission of 
 it ought not to be regarded as fatal to the assessment roll. Its 
 omission is not evidence that the assessors have not performed their 
 duty in making the valuations. It is like an informal verification 
 in judicial proceedings, and, I think, subject to correction and 
 amendment. There is nothing in the nature of the verification 
 showing that it may not be made after the delivery of the assess- 
 ment roll to the supervisors as well as before, and I am of the 
 opinion that the duty of verifying the assessment is to be regarded 
 as directory rather than jurisdictional. (See People v. Allen, 6 
 Wend. 486; Torrey v. Millsbury, 21 Pick. 64; Howard v. Proctor, 
 1 Gray 128.) 
 
 The judgment should be affirmed. 
 
 Concurring, LEONARD, PORTER and WRIGHT, JJ., and DAVIES, 
 Ch. J. 
 
 HUNT, J., read an opinion for reversal, in which PECKHAM, J., 
 concurred. 
 
 Judgment affirmed.
 
 GIBSON V. BAILEY. 331 
 
 GIBSON V. BAILEY. 
 
 Superior Court of Judicature of New Hampshire. July, 1838. 
 
 9 New Hampshire 168. 
 PARKEI;, C. J. 
 
 This brings us to the proceedings of the town under which the 
 land was sold for taxes, and the proceedings of the collector in 
 making the sale. 
 
 And here it is admitted that there are divers defects which are 
 fatal if they cannot be cured. 6 N. H. Rep. 182, Props, of Cardi- 
 gan v. Page; ditto 194, Nelson v. Pierce. 
 
 The return of the posting up of the warrant for the town meet- 
 ing is insufficient. It does not state when it was posted up. Nor 
 does it show that it was posted at a public place. 
 
 It does not appear that Thirston, who was chosen collector, took 
 the oath of office prescribed by law. 
 
 And there are defects in the return of the collector, to which ex- 
 ceptions have been taken. 
 
 The tenants move that these proceedings may be amended. 
 
 It has already been settled that the records of towns may be 
 amended, to conform of the truth of the fact. 3 N. H. Rep. 513, 
 Bishop v. Cone, 11 Mass. 477; Welles v. Battelle, 6 N. H. R. 182. 
 
 The amendment must be made by the person who was in office 
 at the time. 2 Pick. 397, Taylor v. Henry. 
 
 It seems probable that in the prior cases where amendments have 
 been allowed, the officers who were permitted to make them were 
 not in office at the time; if they were, it must have been under a 
 subsequent election, and the right to have the amendment made 
 cannot depend upon the question whether the officer has again been 
 elected. 
 
 The form in which such amendments are to be made, has never 
 yet been settled. It would be very dangerous to sanction altera- 
 tions of the books themselves, by erasures and interlineations. And 
 we are of opinion that they should be made only upon evidence 
 showing the truth of the facts, and then by drawing out in form 
 the amendment which the facts authorize. The amendment, with 
 the order under which it is made, may then be annexed to the books 
 where the original is recorded, so that the whole matter will appear; 
 and, in furnishing copies, the original and amendment should both 
 be furnished. 
 
 But it is objected, on the part of the defendant, that no amend-
 
 332 CU1UXO DEFECTS IN TAX PROCEEDINGS. 
 
 merit ought to be made to her prejudice. That when she pur- 
 chased, these defects in the vendue title were apparent, and she 
 must be presumed to have purchased with knowledge that the title 
 was defective. 
 
 The general rule is, that amendments of records are made with a 
 saving of the rights of third persons, acquired since the existence 
 of the defect. 4 N. H. Rep. 116, Chamberlain v. Crane; 6 ditto, 
 459, Bowman v. Stark. 
 
 To apply this rule, however to all cases of defects in sales of land 
 for taxes, would, in effect, be very nearly denying a right to amend; 
 as the owner of the land sold would attempt to defeat any amend- 
 ment, by conveying to some friend, who would bring a suit in his 
 behalf. It would, at least, be necessary to confine the application 
 of the principle to cases where the land had been actually conveyed 
 bona fide. 
 
 But instances might exist, where the purchaser, although he 
 might not have found upon the records all that was necessary to 
 make a formal and valid record, might have been well assured, from 
 what he did find, that all that was necessary had in fact been done. 
 
 For instance, in relation to the two first defects in the records in 
 this case in the return of the warning of the meeting, and in the 
 record of the oath of the collector although these records are not 
 sufficient in point of law, they lead the mind of any one to the 
 belief that what was requisite was probably done. And- in such 
 cases, where the fact appears to be stated, but not in a formal man- 
 ner, there is no reason that he who purchases should not be sub- 
 jected to the same liability to have the amendment made, and the 
 record put in form, that his grantor would have been, had he at- 
 tempted to recover the land. 
 
 There are cases, where, although all that is required may not ap- 
 pear of record, it may be left to a jury to presume that all that was 
 required was done. As in Bishop v. Cone although the application 
 of the principle in that case may, perhaps, have been questionable, 
 on account of the transactions having been so recent, that, if the 
 truth would have warranted it, an amendment might have been 
 made. Whether that principle could have been applied against a 
 subsequent purchaser, it is not necessary to determine. But where 
 what is necessary is, although not formally stated, so far set down 
 as to lead to a belief that a correct record might have been made, 
 there seems to be no reason why a purchaser, who has access to the 
 records, should not take it subject to a right to have the record put 
 in form, if the truth will warrant it.
 
 GIBSON V. BAILEY. 333 
 
 Where, on the other hand, nothing appears upon the record in 
 relation to any particular fact necessary to make out a title, nor is 
 anything set down from which it is naturally to be inferred that 
 the fact existed, a subsequent bona fide purchaser ought not to have 
 his title defeated by supplying a record instead of amending a 
 record. 
 
 Upon these principles, if the facts will warrant it, the return in 
 relation to the meeting may be so amended as to show the time 
 when the warrant was posted up, it being stated in the original 
 record to have been fifteen days before the meeting; and that Fran- 
 cis Chase's, where it is stated to have been posted, was a public 
 place. So as to the record stating that Thirston, the collector, was 
 "qualified by Francis Chase, Esq.;" an amendment may be made, 
 setting forth that the oath, prescribed by law, was administered to 
 him by Francis Chase, a justice of the peace. 
 
 So, if the truth will admit of it, the return of the collector, that 
 he "proceeded to open the vendue at one o'clock P. M.," etc., may 
 be amended, by stating that the sale was closed before six o'clock, 
 P. M. and to the fact, that it was struck off to Gage, may be 
 added that he was the highest bidder, if such was the fact. 
 
 We must first have evidence to show that these amendments may 
 be made with truth; and, if made, they must be upon such terms 
 as shall appear to be just, when the whole matters are before us. 
 
 The objection that the return of the collector is not recorded, but 
 only put on file, cannot avail. N. H. Laws, 565.
 
 CHAPTER X. 
 
 LISTING OF PERSONS AND VALUATION OF ESTATES 
 FOR TAXATION. 
 
 I. THE NATURE OF AN ASSESSMENT. 
 MATTER OF McPHERSON. 
 
 Court of Appeals of New York. February, 1887. 
 104 New Yo~Jc 306. 
 
 EARL, J. Mary McPherson died in the city of Albany on the 
 6th day of February, 1886, leaving a will which was admitted to 
 probate by the surrogate of Albany county. In her will she be- 
 queathed legacies to various persons who were in no way related to 
 her, and upon the petition of the district attorney of that county 
 the surrogate ordered the executors named in the will to pay the 
 succession tax imposed by chapter 483 of the Laws of 1885. The 
 executors and several of the legatees appealed from the decision of 
 the surrogate to the General Term and from affirmance there to 
 this court. The claim on the part of the appellants is that the act 
 of 1885 is, for various reasons, unconstitutional and void, that the 
 tax was not, therefore, lawfully imposed, and that its collection 
 and payment cannot be rightfully enforced. 
 
 This tax is imposed according to the value of the legacy and col- 
 lateral inheritance liable to be taxed, and hence there must be some 
 mode of ascertaining that value; and for that purpose judicial ac- 
 tion is requisite at some stage of the proceeding before the liability 
 of the taxpayer becomes finally fixed. He must have some kind of 
 notice of the proceeding against him, and a hearing or an oppor- 
 tunity to be heard in reference to the value of his property, and 
 the amount of the tax which is thus to be imposed. Unless he has 
 these, his constitutional right to due process of law has boen in- 
 vaded. Stuart v. Palmer, 74 N. Y. 183; County of San Mateo v. 
 8. Pac. R. R. Co., 8 Sawyer 238; Hagar v. Dist. No. 108, 111 TJ. 
 S. 701. This act is assailed as unconstitutional and void because it 
 is claimed it does not give the taxpayer such notice and hearing. 
 
 334
 
 MATTER OF McPHERSON. 335 
 
 While the provision for notice is not as clear and explicit as it 
 might have been, yet we are constrained to believe that it is 
 sufficient With a view of upholding the constitu- 
 tionality of the act, this and all other sections of the act must be 
 liberally construed, as no act of the legislature may be condemned 
 as unconstitutional, if by fair implication or any just construction 
 of its language it can be upheld. The surrogate who has admitted 
 a will to probate, or granted letters of administration, will ordi- 
 narily have in his possession information as to the persons inter- 
 ested in the estate to be administered; and hence this section im- 
 poses upon him the duty of selecting the persons to whom notice is 
 to be addressed by the appraisers ; and, as all persons interested are 
 entitled to notice, it is a fair inference that it was intended that he 
 should direct notice to be given to all such persons. He is a 
 judicial officer in whose court proceedings are conducted in an or- 
 derly manner, and all persons interested in any question to be de- 
 termined by him are entitled to notice and a hearing. It was 
 intended that this proceeding for the imposition of a tax should be 
 conducted in an orderly way as is required in other proceedings in 
 his court. Therefore, when the section provides that he shall desig- 
 nate by order to whom the notice is to be given, it is necessarily 
 implied that he shall designate all the persons entitled to notice. 
 If he should omit to do so, it would be an error on account of 
 which any tax imposed upon the person not notified or heard would 
 be invalid as having been imposed without jurisdiction. 
 
 It is also provided, that, immediately after he has assessed the 
 tax, the surrogate shall "give notice thereof by mail to all parties 
 known to be interested therein." This gives a further opportunity 
 to the taxpayer to be heard. Upon receiving the notice, if he has 
 had no prior notice or hearing, he may apply to the surrogate and 
 ask for one, and it would be his duty to grant it. The proceeding 
 is in court before a judicial officer and whatever a taxpayer can 
 ask as a matter of constitutional right, it is the duty of the sur- 
 rogate to grant. 
 
 Then there is the right of appeal provided for in the same sec- 
 tion. Any person dissatisfied with the appraisement or assessment 
 may appeal therefrom to the surrogate of the proper county, on 
 paying or giving security to pay all costs and the tax as fixed by 
 the court. Upon such appeal there is another opportunity to be 
 heard. The appeal is not limited to questions of law, but may be 
 taken to the surrogate upon both the facts and the law, and he has 
 ample power to correct any error brought to his attention. For the
 
 336 LISTING OF PEKSONS AND VALUATION. 
 
 purpose of making such correction, he is not bound by the estimate 
 of the appraisers, or by the facts which appear before him; but he 
 may hear such new evidence and allegations as may be properly 
 presented to him. 
 
 So, in all of these modes we think there is sufficient provision for 
 notice and hearing for all parties interested in the tax, and we have 
 no doubt that the act secures to every taxpayer due process of law 
 so far as it is applicable to cases of taxation. 
 
 It is also objected that the act confers powers upon surrogates' 
 courts not authorized by and contrary to the Constitution. There 
 is nothing in the Constitution which in any way specifies or defines 
 the powers or duties of surrogates. They are recognized in vari- 
 ous sections of the Constitution and they have been known to the 
 laws of the State since the foundation of our government. Their 
 jurisdiction has been from time to time defined in the statutes, and 
 from time to time extended and enlarged. Surrogates' courts have 
 always had jurisdiction of the administration, adjustment and settle- 
 ment of the estates of deceased persons, and the imposition and col- 
 lection of this tax are simply incidents in the final settlement and 
 adjustment of such estates, and are in no way foreign to the juris- 
 diction which has generally been exercised by such courts, certainly 
 not so foreign as to make the act obnoxious to any constitutional 
 objection. 
 
 We are, therefore, of opinion that there is no constitutional ob- 
 jection to this act which affects this case, and that the judgment 
 should be affirmed with costs. 
 
 All concur except KAPALLO, J., not voting. 
 
 Judgment affirmed. 
 
 See also county of San Mateo v. South Pac. R. Co. 13 Fed. Repr. 722 
 Supra. See as to license and privilege taxes, McMillen v. Anderson, 95 U. 
 S. 37 Infra. See also Dollar Savings Bank v. United States, 19 Wallace 227. 
 The legislature may constitutionally provide for reassessment where original 
 assessment was invalid or incomplete. Sturges v. Carter 114 U. S. 511 ; Gal- 
 lup v. Schmidt, 183 U. S. 300.
 
 CITY OF TAMPA V. KAUNITZ. 337 
 
 CITY OF TAMPA V. KAUNITZ. 
 
 Supreme Court of Florida. June, 1897. 
 39 Florida 683. 
 
 CARTER, J. 
 
 The assignments of error complain, first, that the court erred in 
 overruling the demurrer to the petition; second, that the court 
 erred in declaring the assessment of petitioner's property unlawfully 
 made. 
 
 1. We think a proper consideration of all substantial questions 
 suggested by the demurrer to the petition can be had by ascertain- 
 ing (A) whether the assessment for taxes of 1896 was void be- 
 cause made by Biglow, instead of the auditor of the city of Tampa. 
 
 A. We think the first question must be answered affirmatively. 
 Section 4, Chapter 4496, approved May 29, 1895, being the pres- 
 ent charter of the city of Tampa, provides that, "the government of 
 said city shall be carried on by the following officers :..... 
 auditor who shall be the assessor of taxes." 
 
 By section 10 it is provided that the mayor shall, by and with 
 the consent of the city council, appoint some suitable person to be 
 called the auditor of said city, who shall give such bond as the 
 council may direct and whose duty and compensation shall be fixed 
 by ordinances, except as herein provided. Section 31 makes it tho 
 duty of the tax assessor of the city, between April 1st and July 1st 
 of each year, to ascertain by diligent inquiry all taxable personal 
 property and all taxable real estate in the city and the names of 
 the persons owning the same on April 1st in each year, and to 
 make an assessment of all taxable property. It requires him to 
 visit and inspect all real estate and affix a valuation thereon, and 
 he is to require the owners of personal property to return and value 
 same under oath, which he is authorized to administer, and any 
 person refusing to make such oath is not permitted afterward to 
 reduce the valuation of such personal property for that year. By 
 section 34 the assessor is required to value all personal property not 
 returned under oath according to his best judgment and informa- 
 tion. Other provisions of the charter require the assessor to make 
 out assessment rolls in the manner specified therein, to meet with 
 the city board of equalization on the first Monday in July of each 
 year, for the purpose of reviewing the assessment rolls, to calculate 
 22
 
 338 LISTING OF PERSONS AND VALUATION. 
 
 and carry out the several amounts of taxes, after the amount to be 
 raised has been determined, and after completing the rolls to append 
 to them an affidavit as to the correctness of the rolls and of the 
 valuations of property made by him, and to issue and attach to the 
 original roll a warrant in the form prescribed by section 38, com- 
 manding the tax collector to collect the taxes therein by sale of 
 the assessed property. The charter of the city having expressly 
 committed these duties relating to the assessment of taxes to the 
 auditor, the city had no power to transfer them to any other per- 
 son. City of Tampa v. Salomonson, 35 Fla., 446, 17 South. Eep. 
 581. We do not understand that the resolution of the city council, 
 referred to in the petition, undertook to transfer the duties of tax 
 assessor from the auditor to the persons authorized to be employed 
 by the finance committee. The persons so employed were merely 
 assistants to the auditor in making the assessment. No new office 
 was attempted to be created by this resolution, nor did the resolu- 
 tion attempt to authorize the employee to make the assessment ex- 
 clusively of the auditor. Biglow, the employee under this resolution, 
 did not pretend to be the rightful auditor or assessor of the city. 
 
 He was a mere employee of the council, having and 
 
 claiming no other or higher rights or duties than those of an as- 
 sistant to the auditor in the matter of making city assessments of 
 taxes. Biglow was not, therefore, an officer de facto whose acts as 
 such would be valid as to third persons, as was the case in the Town 
 of Kissimmee City v. Cannon, 26 Fla. 3, 7 South. Rep. 523. . . 
 . . We think it is absolutely essential to the validity of a tax 
 levy, that the assessment be made by the officer authorized by law 
 to make it. The person making the assessment must be that officer, 
 either de jure or de facto. We do not mean to intimate that the 
 officer must personally perform every act connected with the assess- 
 ment and the making of the tax roll. Many of these acts are of a 
 clerical nature, involving no exercise of discretion, and having no 
 relation to any right of the tax payer. A very large portion of these 
 duties consists in transcribing upon the rolls the various assess- 
 ments, and in calculating the amounts of taxes levied thereon. The 
 assessor may call to his assistance the services of other persons, 
 whether officers or not, in the performance of all clerical or minis- 
 terial duties, and the assessment will not be invalid for that reason 
 if the work of the others is done under his supervision, or is ratified 
 or adopted by him. 
 
 But if the assessor, either from neglect or because of other press- 
 ing duties devolving upon him, permits his assistants to perform
 
 FELSENTHAL ET AL. V. JOHNSON. 339 
 
 all the duties relating to the assessment for a whole tax year, while 
 he abstains from any duty connected therewith, an assessment so 
 made will be utterly void, and it is the duty of the courts to so de- 
 clare it. The reasons are succinctly stated by Mr. Blackwell (Tax 
 Titles, vol. 1, sec. 168) as follows: "The statute being the author- 
 ity, and the officer the agent to execute it, and no one being em- 
 powered to do the act except the persons specially designated in the 
 law for that purpose, it follows that a stranger to the power cannot 
 execute it. The power is conferred upon the officer, not the man. 
 It is an official, not a personal trust. It does not rest upon confi- 
 dence, but upon official responsibility. Hence the only security of 
 the proprietor of the estate is the official character of the person to 
 whom the power is committed. This security mainly depends upon 
 the responsibility of the officer to the government, the sanctity of his 
 oath of office, and his liability to those whose rights are violated by 
 his wrongful acts. ..... The citizen is entitled to all the 
 
 protection against fraud, rapacity, and abuse of authority, in the 
 sale of his property, which official responsibility can secure." The 
 petition distinctly avers that the auditor or assessor performed no 
 "duties whatever connected with the assessment of taxes for the 
 city of Tampa during the year 1896;" that "the said assessment 
 was made by the said Biglow exclusively and that the legal assessor 
 of- the city of Tampa had nothing whatever to do with the assess- 
 ment aforesaid." If these allegations are true, the assessment of 
 petitioner's personal as well as real property was void. 
 
 FELSENTHAL ET AL. V. JOHNSON. 
 
 Supreme Court of Illinois. September, 1882. 
 104 Illinois 21. 
 
 Mr. Justice WALKER delivered the opinion of the Court: 
 This was a bill filed to restrain the collection of taxes levied for 
 State, county and local purposes, for the year 1878, against appel- 
 lants, as private bankers. They furnished the assessor with a list 
 of what they claim was all of the property in their hands subject to 
 taxation. The assessor subsequently notified them to appear on a 
 specified day, for the purpose of fixing the assessable amount of 
 their property. One of the members of the firm applied at the
 
 340 LISTING OF PERSONS AND VALUATION. 
 
 office of the assessor at the time named, and submitted to an exam- 
 ination as to the taxable property in their hands. The valuation 
 was not then fixed. One of the appellants says he asked if his 
 explanation was satisfactory, when the assessor replied he would let 
 him know, but never gave him any notice. 
 
 The assessor fixed the value of the property at a much larger sum 
 than it was returned by appellants, and it is claimed, and there is 
 evidence tending to show, appellants were not notified of the amount 
 of the valuation. The hearing before the assessor was on the 13th 
 day of August, 1878. Felsenthal swears he accidentally learned that 
 the assessor had fixed the value higher than he had returned it, 
 some days after, while the county equalizing board was in session. 
 and that he filed with the clerk of the board of commissioners ob- 
 jections to the amount fixed by the assessor, and that the clerk said 
 to him he would inform him when it would be necessary to testify be- 
 fore the board. The clerk testifies that he has no recollection of 
 the matter, nor does the record show anything in reference to it. 
 He says he directed parties to file the objections with the committee 
 on equalization, etc., which was in daily session; that the commit- 
 tee, when it acted on objections, usually returned the papers to him, 
 and he filed them, but was unable to find any as to this assessment. 
 Felsenthal testifies the clerk informed him the committee referred 
 the objections back to the assessor, but the clerk does not sustain 
 him in this. It is not claimed that appellants, or any one of them, 
 appeared before the committee to obtain a reduction or to have the 
 claim of over-assessment corrected. No other steps were taken than 
 what is claimed above. On the hearing the court below dismissed 
 the bill, and appellants seek to reverse that decree. 
 
 In matters of revenue, courts of equity rarely grant relief, and 
 never where the party has means of obtaining relief at law, and 
 fails or refuses to pursue his legal remedy, or shows an equitable 
 excuse for such failure. The statute has provided ample means for 
 the correction of errors in assessments of property for taxation, by 
 an appeal to the town board of review, and again to the county 
 board. These appeals are provided for and regulated by the 86th 
 and 97th sections of the Eevenue law. The first provides that prop- 
 erty assessed as this was, after the fourth Monday of June, the time 
 for the meeting of the town board of review, shall be subject to 
 complaint to the county board, under the rules regulating the town 
 board of review. The 97th section provides there shall be a meet- 
 ing of the county board on the second Monday of July in each year, 
 and on the application of any person considering himself aggrieved,
 
 FELSENTHAL ET AL. V. JOHNSON. 341 
 
 "they shall review the assessment, and correct the same as shall 
 appear to be just." The statute thus provides ample means for all 
 grievances in the assessment of property for taxation, whether hy 
 over-valuation, or by imposing the assessment on property not sub- 
 ject to taxation, or on property not owned or liable to be assessed 
 to the tax-payer. It embraces every kind of grievance in the as- 
 sessment; and even where there is a supposed grievance, the tax- 
 payer has but to appear, make his complaint known, and have a 
 hearing. If appellants felt themselves aggrieved they had but to 
 appear and state their complaint, and be heard. This they failed 
 to do, and so failing, chancery will not assume jurisdiction to re- 
 view the assessment. They failed to pursue their remedy at law, 
 and can not appeal to equity for relief against their own neglect. 
 
 It is urged that relief should be granted under the equity head 
 of accident. We fail to see that there was any accident. Appellants 
 knew the amount of the assessment in time to appeal to the county 
 board to have it corrected. They knew that the board was in ses- 
 sion, and they failed to attend and prove there was an over-assess- 
 ment. Although the assessment was made too late for an appeal to 
 the town board of review, it was in time for a review by the count}' 
 board, and they were apprised of the fact, and made some slight 
 effort to bring the matter before the board. Felsenthal testifies he 
 filed objections with the clerk, who promised to notify him when he 
 should appear before the board to testify. If he constituted the 
 clerk, as he says, his agent, and the clerk failed to notify him, the 
 neglect of his agent was his, and he must be held responsible for 
 that neglect. Xo such accident is shown as equity regards as ground 
 for relief. To entitle a party to equitable relief when he has not 
 availed of his legal remedy, he must have used every reasonable 
 effort to have employed it. 
 
 It is urged that the assessor, without notice or hearing, changed 
 the assessment of appellants' property, and this is ground for equita- 
 ble relief, and decisions of this court are cited in support of the 
 doctrine. The authorities have no application, because the record 
 fails to show that such a change was made by the assessor. There 
 was but one assessment on his books, and that was made after one 
 of appellants submitted to the examination on the 13th day of 
 August. The assumption seems to be that the schedule returned by 
 appellants was the assessment, and that the larger sum placed on 
 the assessor's books was an alteration of the assessment. This is 
 not true. The assessor, and not the tax-payer, makes the assessment. 
 The latter is required to make and return the schedule to enable
 
 342 LISTING OF PERSONS AND VALUATION. 
 
 the assessor to perform the duty of assessing the value of the prop- 
 erty. Until the assessor approves the schedule, or makes a new one 
 and fixes the valuation of the property, there is no assessment. The 
 act is official, and must be performed by the assessor. It is his 
 judgment, and not that of the tax-payer, that controls. We fail to 
 find that the valuation of this property was ever changed after it 
 was fixed by the assessor, whose duty it was to fix the amount. The 
 cases therefore have no application to the facts in this case. Ap- 
 pellants objected that the value was placed at too large a sum. The 
 assessor's valuation is presumed by the law to be correct, and it de- 
 volves upon the taxpayer to overcome that presumption by proof. 
 He offered no proof to establish that objection. He did not appeal- 
 before the committee and have a time fixed for a hearing, nor did 
 he do any act to have his evidence heard. He could have availed of 
 the means of learning when he could be heard by the committee. 
 
 There is no evidence that the committee referred this objection 
 back to the assessor. It only appears that the clerk informed one 
 of appellants that there was such action by the committee. It was 
 but hearsay evidence, at most. If such was the action, we presume 
 it appears of record somewhere, or there was legitimate evidence of 
 the fact, and could have been produced. But if the evidence had 
 been heard, we do not determine now whether it would constitute 
 ground for relief. 
 
 The decree of the court below is affirmed. 
 
 Decree affirmed. 
 
 But see Moors v. Street Comrs. 134 Mass. 431, where it is held that the 
 assessment may not be raised without giving the taxpayer opportunity to 
 be heard, nor except as provided by the statute. Under some statutes 
 assessors may raise on evidence not submitted to taxpayer. Kansas, etc., 
 R. R. Co. v. Ellis Co., 19 Kan. 584. If by mistake the taxpayer includes in hre 
 list exempted property he is not concluded by his list but may subsequently 
 claim an abatement as to exempted property. Charlestown v. County Corns. 
 109 Mass. 270. 
 
 Often a heavy penalty is imposed for neglect to make a return. These 
 penalties are usually upheld See Drexel v. Commonwealth, 46 Pa. St. 31 
 Supra. See also Porter v. Co. Corns. 5 Gray 365 : Ex parte Lynch, 16 S. C. 
 32; W. U. Tel. Co. v. Indiana, 165 U. S. 304; Caldwell v. State, 14 Texas 
 Appeals, 171.
 
 MATTER OF CAGEE. 343 
 
 MATTER OF CAGER. 
 
 Court of Appeals of New York. November, 1888. 
 Ill New York, 843. 
 
 We are thus brought to the only question in the case, which is, 
 whether the children of Mary Griffin took such an interest in the 
 property devised by the will of William Cager as subjected them to 
 the payment of a tax thereon by force of the acts referred to? This 
 question is to be determined by a consideration of the provisions 
 of that will. The portions affecting the question read as follows: 
 
 "First. After all my lawful debts are paid and discharged, I 
 give, devise and bequeath all my estate, both real and personal, of 
 what nature and kind soever, to my wife, Mary Cager, to be used 
 and enjoyed, and at her disposed during the term of her natural 
 life. 
 
 "Secondly. I give and devise one-third of my real estate and 
 personal property, that may remain at the decease of my wife Mary 
 Cager, to my adopted daughter Mary Griffin, that is to say, the use 
 of the said one-third during her natural life. 
 
 "Thirdly. I further devise and bequeath, at the decease of my 
 wife Mary Cager, the remaining two-thirds of my real estate and 
 personal property to the present heirs of the aforesajd Mary Griffin, 
 namely, Eva Griffin, William C. Griffin, Frank Griffin and George 
 Griffin, share and share alike. 
 
 "I further devise and bequeath, that at the decease of my adopted 
 daughter Mary Griffin, the one-third (as above stated) of which she 
 has had the use, shall be divided between the present heirs of afore- 
 said Mary Griffin, share and share alike." 
 
 The report of the appraiser, appointed by the surrogate to ap- 
 praise the value of the property devised to the various legatees, 
 shows that he assessed the value of the estate devised, respectively, 
 to the children of Mary Griffin, upon two theories, leaving the ques- 
 tion to the surrogate' to determine upon which theory, if any, the 
 tax should be assessed. Upon the theory that the widow took a life 
 estate only in the property, he found the value of that devised to 
 the several children of Mary Griffin to be the sum of $640.96 each; 
 but in case the interest devised to the widow was an estate in fee, 
 or a life estate with power of disposition, he was of the opinion that 
 such legacies had no market value whatever.
 
 344 LISTING OF PEHSONS AND VALUATION. 
 
 The surrogate adopted the former view and assessed the value 
 at the sum named by the appraiser. In this we think he erred. We 
 are of the opinion that the widow took a life estate in the property 
 devised with a limited power of disposition for her use and enjoy- 
 ment, and that any interest in the other legatees was dependent 
 upon the contingency whether the power of disposition was exercised 
 by the life tenant during her life. The meaning and effect of the 
 will must be sought in the language employed by the testator, and 
 when that is discovered, must be carried into effect by the court. 
 
 The language giving all of his estate to his widow, to be used 
 and enjoyed and at her disposal, followed, as it is, by a limitation 
 over of such of the estate as might remain at the decease of his 
 wife, clearly imports an intention to confer upon the widow the 
 power to dispose of the corpus of the estate. (Van Home v. Camp- 
 bell, 100 N. Y. 287; Smith v. Van Ostrand, 64 id. 278; Terry v. 
 Wiggins, 47 id. 512.) 
 
 We think, however, that the power of disposition given to the 
 widow was not intended to be absolute and unconditional, but was 
 limited by the language devising the property, for her use and en- 
 joyment during her life, and did not give her the power of dispos- 
 ing of it by will. This limitation, therefore, operated as a restraint 
 upon the power of alienation, and prevented the estate devised to 
 her, from being defined as an absolute estate in fee. 
 
 The devises, therefore, to Mary Griffin and her children were not 
 in any sense repugnant to the prior estate, and may be sustained a? 
 valid executory devises. Authorities supra. The effect of these 
 conclusions is to destroy the basis upon which the surrogate pro- 
 ceeded in imposing the tax and justified the reversal of his order. 
 While it is possible that the legatees may eventually take a valuable 
 estate, under the will of William Cager, that event, being contin- 
 gent upon the non-exercise by his widow of the power of disposi- 
 tion, renders the present appraisable value of such interest incapa- 
 ble of any correct or reasonably approximate valuation. When the 
 present value of property, which is devised to one with a limita- 
 tion over to others, upon the happening of some event which may or 
 may not occur, can be ascertained, then a ground upon which an 
 approximate estimate of the value of the ultimate devise appears, 
 and it may be made; but when the question as to whether any prop- 
 erty at all shall pass under the limitation over, and, if so, "how 
 much, depends upon the will of the first taker, we are unable to 
 see any rule by which such value can be determined. 
 
 In the case first mentioned, the act enables a tax to be imposed
 
 MYGATT V. WASHBURN. 345 
 
 and collected upon the ulterior devisees, through the medium of a 
 bond to be given by the respective legatees, payable when they come 
 into the possession of the devised property. 2 chap. 483, Laws of 
 1885. In the latter case, however, there is no basis upon which the 
 value of the devise can be appraised, and no foundation for the im- 
 position of any tax and the provision for the giving of a condi- 
 tional bond is, therefore, wholly inapplicable. 
 
 Whether an appraisal of the value of these devises, for the pur- 
 pose of taxation, may be made when they eventually come to the 
 possession of the devisees, we are not called upon now to determine. 
 It may be that the tax will be altogether lost to the State if an 
 appraisal is not now allowed; but if so, the fault lies in the act 
 itself and not in the construction which its language requires to be 
 put upon it. 
 
 The order of the General Term should, therefore, be affirmed. 
 
 All concur. 
 
 Order affirmed. 
 
 Where the amount of the legacy is fixed the transfer is taxable even if the 
 legatee is contingent, Matter of Vanderbilt, 172 N. Y. 69. But the life estate 
 and remainder are separate and neither is to be affected by the tax on the 
 other. Commonwealth's Appeal, 127 Pa. St. 435. 
 
 It has been held under some statutes that a remainder is not taxable 
 until the death of the life tenant. Nieman's Estate 131 Pa. St. 341; Van- 
 derbilt v. Eidman, 196 U. S. 480. 
 
 MYGATT V. WASHBURN. 
 
 Court of Appeals of New York. June 1857. 
 15 New York, 316. 
 
 DENIO, C. J. The act relating to the assessment of taxes requires 
 that every person shall be assessed in the town or ward where he 
 resides when the assessment is made, for all personal estate owned 
 by him. (1 R. S., 389, 5.) As the plaintiff resided in Oxford, 
 during a portion of the year of 1846, and changed his residence to 
 Oswego while the procedings to make out the assessment for that 
 year were going on, it becomes necessary to ascertain when, in the 
 course of these proceedings, the assessment shall be said to be made. 
 ... In my opinion the assessment should be considered 
 as made at the expiration of the time limited for making the in- 
 quiry, namely, on the first day of July. If there is any change, of 
 residence or in the ownership of the property, after that day, it
 
 346 LISTING OF PEKSONS AND VALUATION. 
 
 does not affect the assessment roll. The inquiries are then com- 
 pleted. Any changes which the assessors are authorized to make 
 after that time, are such as may be required to correct mistakes. 
 No earlier day can be assumed, because what is done by one or all 
 the assessors prior to the first of July is inchoate and preparatory, 
 and liable to be altered according to their final judgment on the 
 matter. When the statute speaks of the time "when the assessment 
 is made" it refers to the binding and conclusive act which desig- 
 nates the tax payers and the amount of taxable property. If I am 
 correct in what has been said, it follows that the time, referred to 
 in the statute, is the first day of July. It cannot be an earlier 
 or a later day without involving incongruities which we cannot sup- 
 pose the legislature would have permitted to exist 
 
 The plaintiff, therefore, was not subject to the jurisdiction of the 
 assessors. In placing his name on the roll, and adding thereto an 
 amount as the value of his personal property, they acted without 
 authority. As the board of supervisors was obliged by law to annex 
 a tax to the name of every person assessed upon the roll, and to 
 issue a warrant for the collection of the tax, the unauthorized act 
 of the assessors was the means by which the property of the plain- 
 tiff was procured to be sold. They are, therefore, responsible to the 
 plaintiff for the damages which ensued. It was not, in the view ot 
 the law, the case of an error of judgment. It is a salutary rule, 
 though in some cases, and perhaps in the one before us, it may oper- 
 ate harshly, that a subordinate officer is bound to see that he acts 
 within the scope of the authority legally committed to him. The 
 principle is too well settled to require a reference to authority; but 
 its application to the case of assessment of a person not liable to 
 taxation in the town or district in which the assessment is made has 
 often been declared in the courts of this and other states. (Suy~ 
 dam v. Keys, 13 John., 444; Prosser v. Secor, 5 Barb., 607; People 
 v. The Supervisors of Chenango County, 1 Kern, 573; Freeman v. 
 Kenney, 15 Pick., 44; Lyman v. Fiske, 17 id., 231.) 
 
 The judgment of the Supreme Court should be affirmed. 
 All the judges concurred in affirming the judgment, except 
 SHANKLAND, J., who dissented. 
 
 Judgment affirmed.
 
 CHAMBERLAIN V. FORREST. 347 
 
 PEOPLE EX REL. CHAMBERLAIN V. FORREST. 
 
 Court of Appeals of New York. October, 1884. 
 96 New York, 644. 
 
 Appeal from judgment of the General Term of the Supreme 
 Court, in the fourth judicial department, entered upon an order 
 made June 23, 1883, which affirmed a judgment of Special Term, 
 reducing an assessment made upon the relator as trustee, etc. 
 
 This was a proceeding by a certiorari under and pursuant to 
 chapter 269, Laws of 1880. 
 
 FINCH, J. We need not at present deny that assessors, after 
 the completion of their roll and during the statutory notice of twen- 
 ty days preceding the final hearing and review, may correct a mere 
 clerical error, apparent upon the face of the roll, and which the 
 parties interested, by mere inspection, could see was such. Thus, 
 a mistake in the footing of several separate items, obvious to any 
 one examining the computation, might, perhaps, be corrected in the 
 manner adopted by the defendants in the present case. But we 
 must go much further than that in order to sustain the appeal of 
 the assessors. It has been decided, and is not now disputed, that 
 after the completion of the roll, and the formal notice of that com- 
 pletion, assessors are without jurisdiction to change either the per- 
 sons or property assessed, or the adjudged valuation of the latter, 
 except upon complaint of the party aggrieved. {Clark v. Norton, 
 49 N. Y. 248 ; West/all v. Preston, id. 352 ; Overing v. Foote, 65 id. 
 ;263.) The relator as trustee was intended to be assessed upon per- 
 sonal property in his hands to the amount of $40,000. The asses- 
 sors agreed upon that amount as the correct valuation, but they, or 
 some one of them, entered it on the roll at $4,000. Before the 
 notice was given of the completion of the roll, and while change 
 or correction was entirely within their power, they discovered the 
 fact of the mistaken entry. With this actual knowledge, they 
 failed to make the change which duty required and opportunity 
 permitted, but negligently allowed the error to remain until they 
 themselves certified that the roll was complete and open for inspec- 
 tion. The notice to that effect was given on the 25th day of July, 
 1882, and no change in the entry was made until after August 2, 
 1882. After that and before the review day one of the assessors 
 changed the $4,000 to $40,000. So far as appears, he did this at 
 the time, without notice to the relator, or even to his associates, al- 
 though the latter afterward approved and ratified his act. And
 
 348 LISTING OF PERSONS AND VALUATION. 
 
 thus matters stood until the review day arrived, and then for the 
 first time notice was given to the relator of the change which had 
 been made. He demanded to have the assessment stricken out or 
 restored to the original amount, $4,000, which was denied. By this 
 process he was deprived utterly of the twenty days notice which the 
 statute allowed him. To sustain the assessment might operate in 
 this wise. Immediately upon the completion of the roll and pub- 
 lication of the fact, a tax payer examines it and finds himself as- 
 sessed for $1,000 of personal property and is content. He, there- 
 fore, does not appear on the review day, but finds later that during 
 the running of the notice the assessors had added a cipher and in- 
 creased his liability ten times. If it be said in such case that he 
 should have had notice of the change, then what warrant is there 
 for narrowing that notice to one day when the statute awards twen- 
 ty. Even a clerical error, if it affects substantial rights of a party, 
 is not corrected by the courts without notice to him, and that for 
 such full and regular period as the law prescribes. Here the relatoi 
 had no notice of the actual assessment charged against him until 
 the review day arrived. The effect upon him was the same as if 
 the change had been purposely made with a view of taking him by 
 surprise and giving him the least possible notice. The ground now 
 taken is that the change was but the correction of a clerical error. 
 It was much more than that, for it concerned the very substance 
 and extent of the assessment. What may properly be considered a 
 mere clerical error under the assessment laws was determined in 
 Matter of Hermance et al., (71 N. Y. 485). Under the act of 1869 
 the boards of supervisors, on the recommendation of the County 
 Court, were authorized "to correct any manifest, clerical, or other 
 error in any assessments," etc. After discussing the word "mani- 
 fest" the court said: "Clerical errors are mentioned to distin- 
 guish them from, and exclude errors of substance, of judgment, or 
 of law;" and these latter were further described as "errors affect- 
 ing the merits of the assessment" and not mere errors of form. 
 The error here, if clerical in its origin, was one which affected the 
 substance of the assessment, and when discovered by the assessors 
 before the completion of the roll, and still suffered to remain, be- 
 came an error of pure negligence. Shall they be permitted to plead 
 that as a sufficient reason for depriving the tax payer of the full 
 notice which the law gives him and which is his right? That the 
 change may have been a just one on its merits does not alter the 
 case. That question is not here. Possibly and almost probably, 
 every other assessment upon the same roll might have been in-
 
 COMMONWEALTH V. FREEDLEY'S EXECUTORS. 349 
 
 creased during the running of the notice without compelling any 
 one to pay a tax on what he did not have. That fact would neither 
 justify nor excuse the unauthorized action. The assessors speak to 
 the tax payers through their completed rolls. Those, and those 
 only, register their judgments. What the property-owner there 
 finds he has a right to rely upon as in truth the judgment and de- 
 termination of the officers. If they may change it, with little or no 
 notice, to correspond with some unregistered judgment and opinion 
 known only to themselves, and so as not merely to correct a formal 
 or non-substantial error but so as to increase valuations and add 
 to liabilities there will be little of safety to the tax payer or of util- 
 ity in the rights which the statute confers. 
 
 We are of opinion that the case was properly decided and that 
 the judgment should be affirmed. 
 
 All concur. 
 
 Judgment affirmed. 
 
 COMMONWEALTH V. FREEDLEY'S EXECUTORS. 
 
 Supreme Court of Pennsylvania. 1853. 
 21 Pennsylvania State 33. 
 
 WOODWARD J. The Acts of the Assembly of 7th of April, 1826, 
 and 22nd April, 1846, relating to collateral inheritance taxes, as- 
 sess the tax at a fixed rate on the "clear value" of the estates de- 
 scribed in the acts. But how shall the clear value of the estate 
 be ascertained? The legislature undertook to answer this question 
 by the 12th section of the Act of April 10, 1849, entitled an Act 
 to create a Sinking Fund, &c. 
 
 As amended by the 10th section of the Act of llth March, 1850, 
 relating to collateral inheritance taxes, this 12th section requires 
 the Register to appoint an appraiser as often, and whenever occa- 
 sion may require, for three purposes : 1st. To put a fair valuation 
 on the real estate subject to the tax. 3d. To make a fair and con- 
 scionable appraisement of the personal estate. 3d. To assess and 
 fix the then cash value of all annuities and life estates, growing out 
 of said estate. From this appraisement and assessment any per- 
 son, dissatisfied therewith, has a right to appeal to the Register's 
 Court, within thirty days, on paying or giving security for costs 
 and taxes. 
 
 That the assessment of the appraiser is to be final, if not ap- 
 pealed from, is shown by the act declaring that it is made "to fix
 
 350 LISTING OF PERSONS AND VALUATION. 
 
 the valuation of the real estate" that the appraisement of the per- 
 sonal estate is to be fair and conscionable, and that the tax on an- 
 nuities, and life estates, is to be "immediately payable out of the 
 estate at the rate of said valuation." But the property subject to 
 the tax may be fraudulently concealed, accidently overlooked, or 
 may not be known to the representatives of the decedent at the 
 time of the appraisement, and, therefore, the Register is to appoint 
 an appraiser "as often as, and whenever occasion may require." 
 Whenever portions of the estate come to light after the first ap- 
 praisement, they are to be appraised in the same manner, but as 
 to such portions as were the subject of appraisement, the "clear 
 value" is fixed, and the law assesses the tax of five per cent. Like 
 (the assessment of taxes for state and county purposes, the property 
 subjected is, first, to be found, then valued and appraised, and then 
 taxed; but, instead of officers assessing a rate of taxes on the ascer- 
 tained property, and valuation according to the public necessities, 
 the law, in this instance, assesses a fixed rate. 
 
 Such is the system provided for collateral inheritance taxation, 
 and it does not admit of opening, to take in additions to the clear 
 value of property once assessed. That property is vested in the 
 heir or devisee. If it appreciates, after it comes to him, it is his 
 good luck, if it depreciates, it is his misfortune ; but, 'as the state 
 would not submit to a reassessment for the purpose of diminishing 
 her tax in the event of a subsequent depreciation, she is not enti- 
 tled to a reassessment for the purpose of increasing it by reason of 
 an advance in the market value of the estate, after an assessment 
 by officers of her own appointment, with the right of appeal. The 
 Commonwealth is as much subject to the rules of equity and justice, 
 as her citizens. She possesses the taxing power, but when it has 
 been fairly applied, according to her own dictation, it is spent and 
 gone. Having taken five per cent, of the decedent's estate, accord- 
 ing to its clear value, as fixed and conscionably appraised, she can- 
 not return at intervals to take from the new owners five per cent, 
 of what their skill and industry, or good luck, may have added to 
 its value. If she may, when are such returns to cease? And at 
 what intervals are they to occur? How long and how often are 
 heirs and devisees to be subject to such visitations? The law has 
 prescribed no rule for tortures of this sort, and, therefore, they 
 may not be inflicted. 
 
 The judgment is affirmed. 
 
 For the power of the legislature to provide for a reassessment see note to 
 Matter of McPherson, 104 N. Y. 306, supra.
 
 BORELAND V. BOSTON. 351 
 
 II. TAX DOMICIL. 
 BORELAND V. BOSTON. 
 
 Supreme Judicial Court of Massachusetts. January, 1882. 
 132 Massachusetts, 89. 
 
 Contract to recover the amount of a tax assessed by the defend- 
 ant city upon the poll and personal property of the plaintiff, on 
 May 1, 1877, and alleged to have been paid by him under a pro- 
 test in writing. At the trial in the superior court, before Aldrich, 
 J., the jury returned a verdict for the plaintiff; and the defendant 
 alleged exceptions, which appear in the opinion. 
 
 The case was argued at the bar in November, 1880 ; and was 
 afterwards submitted on briefs to all the judges. 
 
 LORD, J. 
 
 The other question raised is upon the correctness of the instruc- 
 tions of the presiding judge upon the question of domicil. 
 
 The evidence tended to show that the plaintiff was born in Bos- 
 ton in 1824, and had lived there until June 1876, when he sailed 
 for Europe with his family. He testifies that when he left Boston 
 he had definitely formed the intention of not returning to Boston 
 as a resident; that in the fall of 1876 he had decided to make 
 Waterford, Connecticut, his residence, and then formed the inten- 
 tion of purchasing land there, which he bought on May 28, 1877; 
 and that he remained in Europe until 1879, when he returned to 
 this country, and went to Waterford. On this evidence, the judge- 
 instructed the jury, "that a citizen by the laws of this Common- 
 wealth must have a home or domicil somewhere on the first day 
 of May for the purpose of taxation; that in order to change such 
 home or domicil, once acquired, and acquire a new one, the inten- 
 tion to make the change and the fact must concur; that if the 
 plaintiff with no definite plan as to the length of time he should 
 remain abroad, and no definite purpose about a change of domicil, 
 went to Europe with his family, that would not effect a change of 
 his domicil from Boston, and he would remain liable to taxation 
 there ; but that if he left .Boston in 1876 with his family to reside 
 in Europe for an indefinite length of time, with the fixed purpose 
 never to return to Boston again as a place of residence, and with 
 the fixed purpose of making some place other than Boston his resi- 
 dence whenever he should return to the United States, and had in
 
 352 LISTING OF PERSONS AND VALUATION. 
 
 his mind fixed upon such place of residence before May 1, 1877, and 
 remained in Europe until after that time, he was not liable to this 
 tax as an inhabitant of Boston on the first of May of that year; that 
 whether he had done enough to make Waterford his home or not, 
 was not essential in this case, if he had lost his home in or 
 ceased to be an inhabitant of Boston at the time, he was not tax- 
 able there." 
 
 There are certain words which have fixed and definite significa- 
 tions. "Domicil" is one such word; and for the ordinary purposes 
 of citizenship, there are rules of general, if not universal accepta- 
 tion, applicable to it. "Citizenship," "habitancy'' and "residence" 
 are severally words which may in the particular case mean precisely 
 the same as "domicil," but very frequently they may have other 
 and inconsistent meanings; and while in one use of language the 
 expressions a change of domicil, of citizenship, of inhabitancy, of 
 residence, are necessarily identical or synonymous, in a different use 
 of language they import different ideas. The statutes of this Com- 
 monwealth render liable to taxation in a particular municipality 
 those who are inhabitants of that municipality on the first day of 
 May of that year. Gen. Sts. c. 11, 6, 12. It becomes important, 
 therefore, to determine who are inhabitants, and what constitutes 
 inhabitancy. 
 
 We cannot construe the statute to mean anything else than "be- 
 ing domiciled in." A man need not be a resident anywhere. He 
 must have a domicil. He cannot abandon, surrender or lose his 
 domicil, until another is acquired. A cosmopolite, or a wanderer 
 up and down the earth, has no residence, though he must have a 
 domicil. It surely was not the purpose of the Legislature to allow 
 a man to abandon his home, go into another State, and then re- 
 turn to this Commonwealth, reside in different towns, board in dif- 
 ferent houses, public or private, with no intention of making any 
 place a place of residence or home, and thus avoid taxation. Such 
 a construction of the law would create at once a large migratory 
 population. 
 
 If it should be deemed sound to hold that a person, who, before 
 the first day of May, with an intention in good faith to leave this 
 iState as a residence and to adopt as his home or domicil another 
 place, is in good faith and with reasonable diligence pursuing his 
 way to that place, is not taxable here upon the first of May, the
 
 BORELAND V. BOSTON. 353 
 
 doctrine should be limited strictly to cases falling within these 
 facts. 
 
 We think, however, that the sounder and wiser rule is to make 
 taxation dependent upon domicil. Perhaps the most important 
 reason for this rule is, that it makes the standard certain. Another 
 reason is, that it is according to the general views and traditions of 
 our people. 
 
 We have said that we prefer the test of domicil, because of its 
 certainty and because of its conformity to the views and traditions 
 of our people, and, we may add, more in accordance with the various 
 adjudications upon the subject in this State, and more in accord 
 with the general legal and judicial current of thought. It is true, 
 that, as said by Mr. Justice Metcalf, "it has repeatedly been said 
 by this and other courts, that the terms 'domicil/ 'inhabitancy' 
 and 'residence' have not precisely the same meaning." But it 
 will be found upon examination that these three words are often 
 used as substantially signifying the same thing. 
 
 Upon the whole, therefore, we can have no doubt that the word 
 "inhabitant" as used in our statutes when referring to liability to 
 taxation, by an overwhelming preponderance of authority, means, 
 "one domiciled." While there must be inherent difficulties in the 
 decisiveness of proofs of domicil, the test itself is a certain one; 
 and inasmuch as every person by universal accord must have a 
 domicil, either of birth or acquired, and can have but one, in the 
 present state of society it would seem that not only would les? 
 wrong be done, but less inconvenience would be experienced, by 
 making domicil the test of liability to taxation, than by the attempt 
 to fix some other necessarily more doubtful criterion. 
 
 The plaintiff does not bring himself within this rule; for al- 
 though he might have left the Commonwealth with the fixed pur- 
 pose to abandon it as a residence, he did not leave it on his way 
 to a place certain which he had determined upon as his future resi- 
 dence, and was proceeding to with due despatch; and, upon the 
 general rule that, having had a domicil in this Commonwealth, he 
 remains an inhabitant for the purpose of taxation until he has ac- 
 quired a new domicil, the intention and fact had not concurred at 
 the time when this tax was assessed. The instructions of the pre- 
 23
 
 354 LISTING OF PERSONS AND VALUATION. 
 
 siding judge, therefore, inasmuch as they were not based upon the 
 rules here laid down, were not accurately fitted to the facts of the 
 case, and the 
 
 Exceptions must be sustained. 
 
 PENNSYLVANIA V. RAVENEL, 
 
 Supreme Court of the United States. December, 1858. 
 21 Howard 104. 
 
 Mr. Justice NELBON delivered the opinion of the court. 
 
 This is a writ of error to the Circuit Court of the United States 
 for the eastern district of Pennsylvania. 
 
 The action was brought by the State of Pennsylvania against the 
 defendant, executor of the late Mrs. Kohne, to recover the sum of 
 $5,820.23, called a collateral-inheritance tax, assessed upon the per- 
 sonal estate of the testatrix. By the law of Pennsylvania, where 
 the property of the deceased passes to his or her collateral heirs, 
 or to strangers, either by the law concerning intestate estates, or by 
 will, it is made subject to a specific taxation for the benefit of the 
 State. This tax is five per centum on the clear value of the estate. 
 (Brightly's Purdon, p. 138; act 22d April, 1846, sec. 14.) And 
 according to the construction of these acts imposing the tax, it is 
 held, if a decedent be domiciled in the State at the time of his or 
 her death, stocks of other States, or of corporations of other States, 
 and debts due in other States, in the hands of the executors or ad- 
 ministrators, are liable to this tax. (4 Harris's Rep., 63; 18 How- 
 ard's Rep.) 
 
 But if the domicil of the deceased be not in Pennsylvania, then 
 the estate is not subject to the tax. 
 
 Mrs. Kohne died in the city of Philadelphia in March, 1852, and 
 the question in the court below was, whether or not she was domi- 
 ciled in Pennsylvania at the time of her death, or in the State of 
 South Carolina. The jury, under the charge of the court, found a 
 verdict for the defendant. 
 
 The case is before us on four exceptions taken to the charge of 
 the court. 
 
 The first three it is not material to notice 
 
 The fourth exception is, that the court, in the charge, (For 
 charge see infra) took the fact of domicil from the jury.
 
 PENNSYLVANIA V. RAVENEL. 355 
 
 This exception, we think, is founded in a misapprehension of 
 the instructions given. The court, after stating to the jury that 
 the question of elomicil was one of mixed law and fact, observed, 
 that it was for the court to instruct them what constituted a domi- 
 cil, and for the jury to apply the principles of law governing it to 
 the facts as found by them; that the jury had no right to disre- 
 gard the law as laid down by the court, and the court had no right 
 to dictate to them as respected the facts, which they must find on 
 their own responsibility. The court then stated to the jury the 
 principles of law applicable to the question of domicil, to which 
 no exception has been taken. Also, that as it had been admitted 
 Mr. Kohne, the husband, who died in Philadelphia in 1829, had 
 his domicil in Pennsylvania at the time of his death, the domicil 
 of the wife must be taken as in that State at the time, and submit- 
 ted the question whether or not she had since changed it to the 
 State of South Carolina; and then, after referring to the leading 
 facts given in evidence, and relied on to establish a change of dom- 
 icil, observed, that if the jury believed this evidence, the domicil 
 of Mrs. Kohne was in South Carolina. 
 
 The court further say, that the mere speaking of a place as a 
 home, without any act showing an intention to return to it, would 
 amount to nothing. But if acts and the language concur, as proved 
 by the witnesses in the case, it would be a denial to the deceased of 
 the right to choose her own domicil, not to allow her acts and decla- 
 rations, continued for many years, to be conclusive of the fact. 
 
 We perceive nothing in the instructions of the court, or in the 
 view of the case as presented to the jury, by which the question of 
 domicil, so far as it depended upon the facts, was taken from the 
 jury. The evidence was very strong in support of a change of domi- 
 cil by Mrs. Kohne after the death of her husband, and, if believed 
 by the jury, it was not too much to say, as matter of law, that they 
 should find for the defendant. 
 
 The judgment of the court below is affirmed. 
 Mr. Justice DANIEL, dissenting (stating charge to jury below) : 
 "If the jury find, that after his death [the death of the hus- 
 band] she [Mrs. Kohne] returned to her former domicil in Charles- 
 ton, took possession of the house and servants devised to her, lived 
 in that house six or seven months of every year, calling it her 
 home, spending only a few weeks in the spring and fall in her 
 house here, and the remainder of the summer at watering-places; 
 coming north in the summer for the sake of her health, always in- 
 tending to return to her house in Charleston; that she was hin-
 
 356 LISTING OF PERSONS AND VALUATION. 
 
 dered returning the last time from sickness; if she consulted coun- 
 sel how she might avoid giving any pretence to the tax-gatherers 
 of Pennsylvania to treat her as domiciled here; if she carefully de- 
 nied at all times her citizenship in Philadelphia, even to erasing it 
 from printed lists of her church donations, as the assertion of a 
 falsehood; if she refused to have some of her furniture removed 
 here, for fear such a fact would be siezed upon, after her death, 
 for the purpose of asserting her domicil here; if she called herself, 
 in her will, 'of Charleston;' if, when absent from that place, she 
 always spoke of returning to it as her home, and did return to it 
 as such, till hindered by sickness if the jury believed this evidence 
 of defendant's witnesses, testimony which has not been contradicted 
 or denied, it would be absurd to say her domicil was not where she 
 asserted it to be, to wit, in the city of Charleston." 
 
 BELL V. PIERCE. 
 
 Commission of Appeals of New York. May, 
 51 New York, 12. 
 
 About the 20th of June, 1864, plaintiff's family went to the house 
 in West Seneca, and remained there, as in previous years, for about 
 three months, and then returned to the house in Buffalo; and dur- 
 ing the summer season, plaintiff was with his family in West Sen- 
 eca, or at his house in Buffalo, substantially as is stated to have 
 been his habit in previous years. Defendants had no knowledge, 
 before the delivery of the assessment roll to the supervisors of the 
 town, that the plaintiff had or claimed to have any residence except 
 in West Seneca, although they knew that he had been residing dur- 
 ing that year in Buffalo, and that his family had come to West 
 Seneca only a few weeks previous to July 1, 1864. They gave the 
 statutory notices of the completion of the assessment roll, and of 
 their meetings to correct the same, and no one appeared before them 
 to object to the regularity of the plaintiff's assessment. Plaintiff 
 was not assessed for personal property in the city of Buffalo in the 
 year 1864. Upon trial at Circuit, the court directed a verdict for 
 the plaintiff, subject to the opinion of the court at General Term. 
 A verdict was rendered accordingly. 
 
 The omclusions of law* at General Term were as follows: 
 That the defendants, as assessors as aforesaid, had jurisdiction 
 to determine whether the plaintiff was taxable in said town of West
 
 BELL V. PIERCE. 357 
 
 Seneca, for personal property, at the time they prepared said as- 
 sessment roll, in 1864, and that their determination on that sub- 
 ject is conclusive. 
 
 That both of said taxes were legally assessed against the plaintiff. 
 
 That the plaintiff cannot maintain this action, but the defend- 
 ants should have judgment on the verdict. 
 
 And judgment was directed and entered accordingly. 
 
 HUNT, C. If the General Term was right in holding that the 
 defendants, as assessors, had jurisdiction to determine whether the 
 plaintiff was an inhabitant of West Seneca, taxable for personal 
 property in that town, its judgment was correct. If in error on 
 that point, its judgment was wrong. In Barky te v. Shepard, this 
 court held that the assessors had jurisdiction to determine whether 
 the plaintiff's property was entitled. to exemption for the reason that 
 he was a clergyman. (35 X. Y. 238.) In Chegary v. Jenkins, this 
 court held that the assessors had jurisdiction to determine whether 
 the property sought to be exempt as a seminary of learning was 
 entitled to that exemption. (5 N. Y. 376.) 
 
 In each of these cases the assessors had jurisdiction of the per- 
 son alleged to be taxable, and of the property on which the assess- 
 ment was sought to be imposed. Barhyte, for example, was a resi- 
 dent of the town of Spencer. In that town were located both the 
 real and personal estate, respecting which the question arose. He 
 was undoubtedly a taxable inhabitant, that is, one of a class liable 
 to taxation under proper circumstances. So was Madame Chegary 
 a taxable inhabitant of New York. The persons being taxable in- 
 habitants, and the property in each case being before the assessors, 
 it was their duty to decide whether it came within the exemptions 
 provided by law. The parties making complaint themselves sub- 
 mitted that very question to the assessors. It was their duty to de- 
 cide it as they understood the law to be. In Mygatt v. Washburn. 
 (15 N. Y. 316), on the other hand, the assessors had no jurisdiction 
 of the person of the plaintiff. He was not a taxable inhabitant, that 
 is, he was not liable to taxation for personal property in the town 
 of Oxford, under any circumstances. The assessors, therefore, had 
 no power to adjudicate upon the question of his taxability, and 
 when they undertook to do so their action, was void, and did not 
 protect them from liability. 
 
 Under the Revised Statutes the rule is as follows, viz: "Every 
 person shall be assessed in the town or ward where he resides, when 
 the assessment is made, for all the personal estate owned by him." 
 (1 R. S. 390, 5.) But one assessment can be made upon an in-
 
 358 LISTING OF PEESONS AND VALUATION. 
 
 dividual for personal estate, and that must be in the town or ward 
 where he resides when the assessment is made. In the year 1850 
 (Laws 1850, chap. 92, p. 142), it was enacted, "that in case any 
 person possessed of such personal estate shall reside during any 
 year in which taxes may be levied, in two or more counties, town? 
 or wards, his residence, for the purposes and within the meaning of 
 this section (5, supra), shall be deemed and held to be in the 
 town, county or ward in which his principal business shall have 
 been transacted." (1 R. S,. Edm. ed., 362.) 
 
 A new test to determine the fact of residence, which was before 
 unknown, was created by this law. By the fact as ascertained in 
 this mode, to wit, the place of business, was the liability to taxa- 
 tion determined. The statute assumes that a man may have more 
 than one place of residence at the same time. The liability to tax- 
 ation for personal property is fixed by the residence on the first 
 day of July in each year. Mygatt v. Washburn, supra. No per- 
 son can be assessed as a taxable inhabitant of Seneca unless on that 
 day he was a resident of that town. On that day the plaintiff had, 
 with his family, occupied his own house in that town for ten days. 
 His family remained there for three months continuously, the plain- 
 tiff taking a portion of his meals there every day and spending 
 there five or six nights of each week. He attended daily to his 
 business in Buffalo, taking a portion of his meals at his house 
 there, sleeping there one or two nights of each week, his wife occa- 
 sionally taking meals at the house with him. The plaintiff, upon 
 this state of facts, was no doubt a voter in Buffalo, and was there 
 liable to military and jury duty. He was a resident of Buffalo, hav- 
 ing his domicile in that city. The cases also show that he was at 
 the same time a resident of West Seneca. To establish a residence, 
 requires a less permanent abode than to give a domicile, or even to 
 create an inhabitance. (Harvard v. Gore, 5 Pick. 379; Guire v. 
 0' Daniel, 1 Binny 349; Haggart v. Morgan, 1 Seld. 422.) 
 
 The books are full of cases defining residence and non-residence 
 under the statutes, subjecting non-residents to arrest and their prop- 
 erty to attachment. It would be difficult to reconcile these cases. I 
 do not find any well considered cases where the question has arisen 
 upon the statute providing for the taxation of personal property, 
 other than those I have referred to. I conclude, therefore, that the 
 plaintiff, on the first da$ of July, 1864, was, for the purpose of 
 taxation, a resident of the town of West Seneca. Being a resident 
 of that town, and having personal property liable to taxation, the
 
 MIDDLETOWN FERRY CO. V. MIDDLETOWN. 359 
 
 assessors had jurisdiction to include that property in the assessment 
 roll of that town. The case comes within the principle of Barhytc 
 v. Shepard, supra, and not within that of Mygatt v. Washburn, 
 where the assessors had no jurisdiction of the person of the plain- 
 tiff, and no right to take any action on the subject Where the 
 principal business of the plaintiff was transacted was a matter of 
 fact, to be ascertained by proof and to be settled by judicial deter- 
 mination. This determination was to be made by the assessors. It 
 was made upon proof presented, or, if none was presented, by the 
 best means of knowledge possessed by them. They are not liable 
 for an erroneous decision of a question which they had jurisdiction to 
 decide. 
 
 The judgment should be affirmed with costs. 
 
 EARL and GRAY, C. C., dissenting. 
 
 III. LIABILITY OF CORPORATIONS. 
 MIDDLETOWN FERRY CO. V. TOWN OF MIDDLETOWN. 
 
 Supreme Court of Errors of Connecticut, April, 187 S. 
 40 Connecticut. 65. 
 
 PARK, J. The statute in relation to the assessment and collec- 
 tion of taxes, (Gen. Statutes, page 710,) provides that the per- 
 sonal property of certain corporations shall be assessed and set in 
 the list of the towns in which such corporations have their princi- 
 pal place of business or exercise their corporate powers. The plain- 
 tiffs' corporation comes within this provision of the statute, and the 
 plaintiffs claim, and the court has found, that during the time cov- 
 ered by the plaintiffs' declaration they had their principal place of 
 business and exercised their corporate powers in the town of Port- 
 land. 
 
 This finding of the court would seem to decide the case in favor 
 of the plaintiffs, unless it can be said, as a matter of law, that the 
 principal place of business of a corporation, or where it exercises 
 its corporate powers, is where the business of the corporation is be- 
 ing carried on by its servants and agents, who perform such duties 
 as the corporation requires of them. 
 
 It appear? in the case that the town of Middletown extends to
 
 360 LISTING OF PERSONS AND VALUATION. 
 
 the east side of the Connecticut River, and that consequently the 
 ferry boats of the plaintiffs, in plying back and forth from the east 
 to the west shore of the river in the performance of the business 
 of the plaintiffs, are all the time within the limits of the defendant 
 town; and hence the defendants claim that, during the time in ques- 
 tion, the principal place of the business of the plaintiffs, or where 
 they exercise their corporate powers was upon their ferry boats on 
 the river, although the court had found that, previous to the time 
 in question, the stockholders of the plaintiffs' corporation, in legal 
 meeting, duly warned and held, voted, in good faith, to change its 
 place of business from the town of Middletown to the town of 
 Portland, where four-fifths of the stock of the corporation was 
 owned and held, and where a majority of the directors resided; and 
 although all the regular and special meetings of the corporation 
 and of the directors have ever since been there held, and all the 
 books and papers of the corporation, except such as have been in 
 daily use in carrying on the business of the corporation, have been 
 there deposited. 
 
 We think it is clear that the principal place of the business of a 
 corporation, or where it exercises its corporate powers, within the 
 meaning of the statute, is where the governing power of the cor- 
 poration is exercised; where those meet in council who have a right 
 to control its affairs and prescribe what policy of the corporation 
 shall be pursued, and not where the labor is performed in executing 
 the requirements of the corporation in transacting its business. It 
 may be true in the sense of "qui facit per alium facit per se," that 
 a corporation may be said to exercise its corporate powers wherever 
 its business is being transacted, but in this statute the expression is 
 used in a stricter sense. It has reference to what is done directly 
 by the corporation itself in the management of its affairs, and not 
 to what is done by others in obedience to its requirements. We 
 think this claim of the defendants is untenable. 
 
 Again, it is claimed that the plaintiffs had no right under their 
 charter to change their principal place of business, or the place 
 where they had exercised their corporate powers; that this place 
 having once been established by the charter in the town of Mid- 
 dletown, it must there remain, and that it did consequently remain 
 there during the years in which the assessments of the plaintiffs 
 were made. But we discover nothing in the charter which sustains 
 this claim. Nothing in it has been pointed out, except some ex- 
 pressions from which a slight inference might be drawn that it was
 
 WESTERN TRANSPORTATION CO. V. SCHEU. 361 
 
 expected that the corporation would remain a Middletown corpora- 
 tion, but this is not sufficient to make void the acts of the corpora- 
 tion in removing its principal place of business from the town of 
 Middletown to the town of Portland, when the statute seems to 
 contemplate that such corporations will change their principal place 
 of business, or the place where they exercise their corporate powers, 
 as occasion may require. If it were not so it would have declared 
 that such corporations should be taxed in the towns where they first 
 had their corporate existence 
 
 There is no error in the judgment complained of. 
 
 In this opinion the other judges concurred. 
 
 Foreign corporations acquire the domicil of their manager. Dubuque 
 v. Illinois Central R. R. Co. 39 Iowa 83. Thus, if a foreign insurance 
 company deposits bonds with a state officer at the state capital, it is to be 
 taxed on these bonds, not at the state capital but at the domicil of its 
 managing agent. Life Ins. Co. v. Commissioners, 31 N. Y. 32. But 
 choses in action owned by a foreign corporation may be taxed, if the 
 statute so provides where they are situated. Savings etc., Society v. 
 Multnomah Co., 169 U. S. 421 supra. 
 
 WESTERN TRANSPORTATION CO. V. SCHEU ET AL. 
 
 Court of Appeals of New York. June, 1859. 
 19 New York, 408. 
 
 Appeal from the Supreme Court. The action was for the pur- 
 pose of determining where the plaintiff, a corporation having a cap- 
 ital stock of $900,000, was taxable. It had been assessed for such 
 capital in the town of Wheatfield, Niagara county, and the com- 
 plaint admitted its liability to such assessment. It had also been 
 assessed in the eighth ward of the city of Buffalo, and the defend- 
 ants, Scheu and Reynolds (the respondents) were officers of that 
 city, the former of whom had issued, and the latter was proceeding 
 to enforce, a warrant for the collection of the tax. The trial was 
 before Mr. Justice Davis, without jury, and he ordered judgment, 
 restraining Scheu and Reynolds from collecting the Buffalo assess- 
 ment. Upon appeal, this judgment was affirmed at general term in 
 the eighth district, and the defendants appealed to this court. 
 
 SELDEN, J. It was stated upon the argument that the sole object 
 'of this suit was, to have it judicially determined whether the plain- 
 tiffs are liable to taxation in the city of Buffalo; and any technical 
 imperfections in the pleadings or proceedings were expressly waived,
 
 3G^ LISTING OF PEKSONS AND VALUATION. 
 
 with a view to the decision of this single question. The general law 
 of the State on the subject of the assessment and collection of taxes 
 (1 R. S., 389, 6), provides, that "all the personal estate of every 
 incorporated company, liable to taxation on its capital, shall be as- 
 sessed in the town or ward where the principal office or place for 
 transacting the financial concerns of the company shall be." 
 
 The plaintiff is a corporation organized under the act of April 
 15, 1854, for the incorporation of companies to navigate the lakes, 
 &c. (Sess. Laws, 1854, 218), the first section of which provides, 
 that any five or more persons may form a company, by making a 
 certificate in writing, and filing the same "in the office of the clerk 
 of the county in which the principal office for the management of 
 the business of the company shall be situated," in which certificate 
 they are required to state, among other things, "the name of the 
 city or town and county in which the principal office for managing 
 the affairs of such company is to be situated." 
 
 The certificate filed by the plaintiff, pursuant to this act, bearing 
 date of December 28, 1855, in addition to other statements required 
 by the statute, contains the following, viz: "The principal office 
 for managing the financial and other affairs of such company shall 
 be located and situated at the village of Tonawanda, in the town 
 'of Wheatfield, county of Niagara, which is hereby declared to be the 
 village, town and county where the principal office for managing 
 the affairs of such company shall be situated." This certificate was 
 filed on or about the day of its date in the office of the clerk of the 
 county of Niagara. 
 
 It was proved upon the trial that the company, shortly after its 
 organization, established and had ever since maintained an office at 
 the village of Tonawanda, where the stock book of the company was 
 kept, and where the directors held their regular monthly meetings; 
 but at which very little other business was transacted. Only one 
 clerk was employed at this office, at a salary of $150 per annum. 
 It also appeared that the business of the company, consisting of 
 the transportation of produce and other property upon the Western 
 Lakes and the Erie Canal, was very large; that twenty clerks were 
 employed at the office of the company in Buffalo; that the presi- 
 dent, secretary and treasurer of the company resided there, and did" 
 their business chiefly at that office; that the business done there 
 annually amounted to several hundred thousand dollars; that full 
 books of account of the business of the company were kept there; 
 that money received at places west of Buffalo, after paying neces- 
 sary disbursements, were remitted to the office at Buffalo; that the
 
 WESTEKN TRANSPORTATION CO. V. SCIIEU. 3GO 
 
 company had a large number of offices both East and West, at all 
 of which, except New York and Chicago, the business was much less 
 than at Buffalo; that more money was received at Chicago, and 
 about twice as much at New York, as at Buffalo. It was shown 
 also that the object of the company, in locating its principal office 
 at Tonawanda, was to avoid taxation in the city of Buffalo. 
 
 Under these circumstances it is evident, that unless the certificate 
 filed pursuant to the statute, is conclusive upon the question of loca- 
 tion if the matter is open to parol proof at all, it is established be- 
 yond controversy, that the principal office "for transacting the finan- 
 cial concerns of the company" is not at Tonawanda, but either at 
 New York or Buffalo; probably the latter. The only question then 
 is, in regard to the effect as evidence, of the statement in the cer- 
 tificate. There are some considerations which seem to me decisive of 
 this question. Unless the Legislature intended that the certificate 
 should be conclusive, as to the location of the principal office, it is 
 difficult to see any adequate motive for requiring the statement to 
 be made. It is in no manner essential to the existence of a cor- 
 poration that the place of its principal office should be fixed, or even 
 that it should have any such office. We can, however, see obvious 
 reasons why it is expedient that corporations should be deemed to 
 have a location for certain purposes, among which is that of taxa- 
 tion; and that this should be definite and certain, and not subject 
 to fluctuation or doubt. When the question is left open to parol 
 proof, serious difficulties and embarrassments must often arise. 
 What makes the office of a corporation its principal office? Is it 
 the residence of its officers? or does it depend upon the amount of 
 the business done, or the number of clerks kept at a particular 
 office? These and other like questions are of difficult solution where 
 the question is left open and at large, and necessarily tend to pro- 
 duce controversies and litigation. To avoid disputes upon the sub- 
 ject was, I apprehend, one motive for requiring the location to be 
 fixed by the certificate. It is not important that a corporation should 
 be taxed where it does the greatest amount of its business; but it i 
 important that the place where it is liable to be taxed should be 
 known. 
 
 Another motive for the requirement in question, is shown by sec- 
 tion 23 of the act of 1854, which requires the company to keep its 
 stock books at the place designated in the certificate. This is for 
 the convenience of the stockholders, and of persons dealing in the 
 shares of the corporation. It is of very little consequence where 
 such books are kept, whether where the other business of the com-
 
 364 LISTING^ OF PERSONS AND VALUATION. 
 
 pany is principally done or not; it is only important that the place 
 should be known and fixed. 
 
 Other considerations having the same tendency might be drawn 
 from the various provisions of the act of 1854, and from cotem- 
 poraneous legislation; but these are sufficient, I think, to show that 
 the object of the Legislature, in requiring these corporations to 
 designate the location of their principal office in the certificate filed, 
 must have been to produce that certainty on the subject, which 
 could not otherwise be attained, and that the provision did not orig- 
 inate in any supposed necessity for having the "principal office" and 
 the place of the principal business of the corporation identical. 
 
 The defendant's counsel seemed, upon the argument, to place 
 much reliance upon the fact, that the motive of the company in 
 placing its principal office at Tonawanda was to avoid taxation. 
 But it is no more inequitable or immoral for a corporation to do 
 this, than for an individual to do substantially the same. A per- 
 son may keep his office in Buffalo and transact business there to 
 an unlimited amount, enjoying all the facilities and advantages 
 which the enterprise and expenditures of the city have afforded, 
 and yet by residing without the city bounds avoid all municipal 
 taxation. When this shall be practised, either by individuals or 
 corporations, to an extent which renders it a serious evil, it will be 
 for the Legislature to interfere. 
 
 The judgment of the Supreme Court should be affirmed. 
 
 All the judges concurring, 
 
 Judgment affirmed. 
 
 If the domicil of a corporation is fixed by its charter it may not be changed 
 subsequently by the corporation by moving its business or property or con- 
 ducting its business elsewhere. Oswego Starch Factory v. Dolloway 21 N. Y. 
 449. 
 
 PEOPLE EX REL PLATT V. WEMPLE, COMPTROLLER. 
 
 Court of Appeals of New York. November, 1889. 
 117 New York, 136. 
 
 DANFORTH,.J. This case arises upon an application made by the 
 relator, as president of the United States Express Company, for a 
 certiorari requiring the comptroller of the state to return to the 
 Supreme Court his proceedings relating to the imposition of a tax 
 on the franchise or business of that company, to the end that such
 
 PLATT V. WEMPLE. 365 
 
 proceedings might be set aside, and in the meantime the collection 
 of the tax be stayed. 
 
 The express company was composed of individuals who signed an 
 agreement purporting to have been made April 22, 1854, but which, 
 by its terms, was to take effect on the 1st day of May, 1854, and 
 continue in force for ten years thereafter. On November 24, 1859, 
 the articles were amended by the associates so as to continue in 
 force for twenty years from the 1st of May, 1864, and on January 
 23, 1884, the directors, under power conferred upon them by the 
 associates, passed a resolution continuing the existence of the com- 
 pany for twenty years from May 1, 1884. The association was 
 formed for the purpose of carrying on a forwarding agency, bank- 
 ing, exchange and insurance business between such cities and towns 
 of the United States, and those of other countries, as the directors, 
 or their successors, might specify. 
 
 It is described in the articles as a "joint-stock company," its cap- 
 ital declared to be $500,000, divided into shares of $100 each, sub- 
 ject to increase or decrease, as the board of directors might think 
 proper, but represented by certificates or scrip, signed by the presi- 
 dent and secretary of the company, and countersigned by the treas- 
 urer. These shares are made assignable, without restriction, from 
 one person to another, in the usual form, in person or by attorney, 
 and may be forfeited by order of the directors for causes set forth 
 in the agreement. The property and business of the company is to 
 be managed by a board of directors, who, from their own number, 
 might elect a president, vice-president and secretary, and, except by 
 their permission, "no shareholder in" the company can use or sign 
 its associate name; in short, into their hands the management of 
 the whole business of the company is intrusted. The directors are 
 also empowered to declare dividends from the net earnings of the 
 company as they may from time to time deem expedient. Deeds 
 and other instruments of conveyance, or as security, are to run to 
 the president; and all suits at law or in equity in favor of the com- 
 pany are to be brought in his name. It is also provided that the 
 death of no member or of any number of members less than a 
 majority of the interest of the whole, shall operate as a dissolution 
 of the company, but its business shall continue as if no death had 
 occurred. 
 
 It seems obvious from these articles, that the arrangement con- 
 cur- mated by them has little in common with a private partnership, 
 for they provide for a permanent investment of capital, the right
 
 366 LISTING OF PERSONS AND VALUATION. 
 
 of succession, the transfer of property by any assignment of the 
 certificate of ownership, and the prosecution of suits in the name 
 of one person. The company 'has, therefore, the characteristics of 
 a corporation, and, so far as it can, it assumes to itself an inde- 
 pendent personality, and asserts powers and claims privileges not 
 possessed by individuals or partnerships. 
 
 In view of the capacities and attributes with which, as we have 
 seen, the United States Express Company is endowed, and in view, 
 also, of the statutes which legalize its assumed capacities and make 
 valid and effective its asserted right of succession, its distinctive 
 name and the alienability of its shares, we find nothing to warrant 
 the contention of the appellant that it is a mere partnership, exist- 
 ing only under its articles of agreement and association It is true 
 those articles contain no reference to any statute of the State, as 
 one under or by which the compar, was organized, yet, by the very 
 constitution of the body itself and the privileges and powers which 
 it can only exercise by virtue of those statutes, it must be taken to 
 belong to one of those classes of artificial beings described in the act 
 of 1880 as a "corporation, joint-stock company or association/' The 
 several persons composing it are made into a collective body and 
 are given capacity in its name, and not their own, to take, grant, 
 sue and be sued. Thus they are united, or organized, or incorpo- 
 rated. The death of a member causes no interruption, and the power 
 of continued existence of this one body, and its organized or cor- 
 porate action is derived from no inherent power of one or all of ita 
 members, but from the law, which sanctions the union. It is doing 
 business within this state, and because it was also formed under the 
 laws of the state it is within the act. Nor does it seem to us that 
 this construction is at all at variance with the literal and precise 
 language of the act. It declares ( 3 of the act of 1880, as amend- 
 ed in 1881, chap. 36), "Every corporation, joint-stock company or 
 association whatever, now or hereafter incorporated or organized 
 under any law of this state, or now or hereafter incorporated or 
 organized by or under the laws of any other state or country, and 
 doing business in this state (with certain exceptions not now mate- 
 rial) shall be subject to, and pay a tax, as a tax, upon its corpo- 
 rate franchise or business into the treasury of this State annually, 
 to be computed," according to certain specified circumstances, upon 
 the capital stock or its valuation, made in accordance with the pro- 
 visions of the first section of the act. 
 The word "incorporated," as here used, is not to be
 
 PLATT V. WEMPLE. 367 
 
 taken in a technical or restricted meaning and confined to an asso- 
 ciation brought into being according to the formula of a statute, but 
 as including any combination of individuals upon terms which em- 
 body or adopt as rules or regulations of business the enabling pro- 
 visions of the statutes. 
 
 In the case before us the agreement, which brought many persons 
 into one artificial body, was so framed as to accomplish that end. 
 and in proposing to conduct its affairs by the power given to it in 
 the mode prescribed by the legislature, they must be deemed, for 
 the purposes of the act in question, to be incorporated, that is, 
 formed or united under the law of the state whether the artificial 
 body be termed a corporation, a joint-stock company or association. 
 
 Xor is the principal question altogether new. In Waterbury v. 
 Merchants' Union Express Company (50 Barb. 158) the nature and 
 legal character of the defendant, a joint-stock association, created 
 in like manner with the one before us, was held to have all the at- 
 tributes of a corporation, and all its incidents except a common 
 seal. The statutes from 1849 to 1867 were examined and held to 
 confer the qualities which distinguish a corporation from a part- 
 nership, and to establish the relations of a member of the associa- 
 tion as those of a stockholder in a corporation, and not those of an 
 individual in a partnership, and that, in controversies affecting 
 them, the analogies afforded by laws and jurisprudence in the case 
 of corporations should be followed, and not those derived from a 
 simple partnership. In Westcott v. Fargo, president of the same 
 company (6 Lans. 319), a like discussion was had upon circum- 
 stances calling for a decision as to the nature and character of the 
 association. A shareholder sued the company for the loss of freight 
 intrusted to it. It was set up as a defense that the plaintiff, as 
 such shareholder, was one of the owners of interest in the express 
 company; but the court held otherwise that it was no valid ob- 
 jection that the plaintiff was a member of that company saying: 
 "The action is against the corporation," and, so, the plaintiff pre- 
 vailed. Upon appeal the case came to this court (61 N. Y. 542), 
 and again the issue was distinctly presented. The appellant con- 
 tended that the plaintiffs could not maintain an action upon a con- 
 tract between themselves and the association of which they were 
 members; that their remedy was in equity for an accounting as in 
 partnership cases; while, for the respondent, it was argued that 
 "joint-stock companies, organized under the statutes of the state 
 are corporations, not partnerships." This court also examined the 
 statutes relating to joint stock companies and came to the conclu-
 
 368 LISTING OF PERSONS AND VALUATION. 
 
 feion that they conferred powers and privileges of corporations not 
 possessed by individuals or partnerships. 
 
 We, therefore, agree with the Supreme Court and think its order 
 should be affirmed. 
 
 All concur; ANDREWS, J., in result. 
 Order affirmed. 
 
 Sec to the same effect Liverpool Ins. Co. v. Mass., 10 Wall. 56ft. 
 
 PEOPLE V. EQUITABLE TRUST COMPANY. 
 
 Court of Appeals of New York. June, 1884' 
 96 New York, 387. 
 
 Appeal from judgment of the General Term of the Supreme 
 Court, in the third judicial department, entered upon an order made 
 January 23, 1883, which affirmed a judgment in favor of plain- 
 tiff, entered upon a decision of the court on trial, without a jury. 
 
 EARL, J. This action was brought by the attorney-general 
 against the defendant, a foreign corporation, to recover the sum of 
 $1,575, which, it is claimed, the defendant should have paid into 
 the treasury of the State within fifteen days from January 1, 1882, 
 under section 2 of the act, chapter 542 of the Laws of 1880, as 
 amended by chapter 361 of the Laws of 1881. 
 
 The defendant is a Connecticut corporation, and for many years 
 did business through its officers in that State. Its business was 
 the negotiating of loans on mortgages in the western states, or the 
 purchase of obligations secured by mortgages in those States, and 
 the selling of securities based on those loans and obligations. But 
 during the year ending November 1, 1881, it did but little busi- 
 ness and made but few loans, being engaged in caring for its old 
 business of previous years, and looking after its real estate. During 
 that time its sales of securities were very light, and were mostly 
 made in foreign countries. During the eight years prior to the 
 commencement of this action, it had an office for the transaction 
 of business in the city of New York; but a very small portion of 
 its property was in this State, and but little of its business was 
 done here. 
 
 The main contention on the part of the defendant is that there
 
 PEOPLE V. EQUITABLE TRUST CO. 369 
 
 is no constitutional authority for imposing the tax or enforcing its 
 collection. It is, therefore, important first to determine the mean- 
 ing of the act so far as it bears upon this case. 
 
 The act is entitled "An act to provide for raising taxes for the 
 use of the State upon certain corporations, joint-stock companies 
 and associations." Section 1 provides for the report as to divi- 
 dends, and the appraisal of the capital stock of corporations in 
 cases where no dividends have been declared or the dividends have 
 been less than six per centum. Section 3, so far as it is now im- 
 portant, is as follows: "Every corporation, joint-stock company or 
 association whatever, now or hereafter incorporated or organized by 
 or under the laws of this State, or now or hereafter incorporated or 
 organized by or under the laws of any other State or country, and 
 doing business in this State, except savings banks and institutions 
 for savings, life insurance companies, banks and foreign insurance 
 companies, and manufacturing corporations carrying on manufac- 
 tures within this State, which exceptions shall not be taken to in- 
 clude gas companies or trust companies, shall be subject to and pay 
 a tax, as a tax upon its corporate franchise or business, into the 
 treasury of the State annually, to be computed as follows: If the 
 dividend or dividends made or declared by such corporation, joint- 
 stock company or association, during any year ending with the first 
 day of November, amount to six or more than six per centum upon 
 the par value of its capital stock, then the tax to be at the rate of 
 one-quarter mill upon the capital stock for each one per centum of 
 dividends so made or declared; or if no dividend be made or de- 
 clared, or if the dividend or dividends made or declared do not 
 amount to six per centum upon the par value of said capital stock, 
 then the tax to be at the rate of one and one-half mills upon each 
 dollar of valuation of the said capital stock made in accordance 
 with the provisions of the first section of this act." 
 
 The defendant, being a foreign corporation, could not be taxed 
 here in reference to its property situate out of this State, and its 
 business not done here. Nor could it be taxed on account of its 
 corporate franchise, as that was not given by our laws, was de- 
 pendent upon the laws of the State of its creation, and had no ex- 
 istence separate therefrom. A corporation may, through its agents, 
 extend its operations into other States, and thus, metaphorical!} 
 speaking, go there; but it never really travels and its franchises 
 exist only at the place of its domicile and residence. (Plimpton V. 
 Bigelow, 93 X. Y. 592.) 
 24
 
 370 LISTING OF PERSONS AND VALUATION. 
 
 So far as section 3 imposes a tax upon corporate franchises, its 
 operation must, therefore, be confined to corporations created under 
 our laws; and as to foreign corporations the tax is imposed solely 
 upon business. The counsel for the appellant, however, claims that 
 the tax is imposed upon all the business of such corporations, 
 whether done in this State or elsewhere, and hence that this tax 
 upon the business of this corporation, mostly done without the 
 State, was wholly unauthorized. If the proper construction of this 
 act requires us to hold that this tax was imposed upon all the busi- 
 ness of this corporation it is, as I understand, conceded by the at- 
 torney-general that it cannot be enforced. We are of opinion that 
 this was a tax imposed upon the business of this corporation done 
 within this State. 
 
 The legislature was dealing with the subject of taxing foreign 
 corporations doing business in this State, and taxing them only be- 
 cause they did business in this State, and having the right to tax 
 them only upon business done in this State. Under such circum- 
 stances, . .. . . . if there was nothing else in the statute to 
 
 throw light upon the legislative intent, we would be obliged to hold 
 that the word "business" had reference to business done within this 
 State. But other parts of the statute make this plain. In the 
 earlier part of the section the words "doing business in this State" 
 are used, and when the word "business" is used later it has ref- 
 erence to the same business which was then in the legislative mind. 
 Then the whole framework of the act shows that the legislature was 
 conscious of the limitations upon its powers. Foreign insurance 
 companies, and railroad and other transportation companies, were 
 made liable to pay a tax, in plain terms, only upon business done 
 in this State. It cannot be supposed that the legislature meant to 
 tax some foreign corporations doing business in this State upon all 
 their business done anywhere, and tax others only upon their busi- 
 ness done in this State. There can be no reason for such discrim- 
 ination, and it clearly was not intended. 
 
 We have, therefore, reached the conclusion that this judgment 
 should be affirmed. 
 
 All concur, except ANDREWS, J., not voting. 
 Judgment affirmed.
 
 COMMONWEALTH V. N. Y., L. E. & W. R. CO. 371 
 
 COMMONWEALTH V. N. Y., L. E. & W. R. CO. 
 
 Supreme Court of Pennsylvania. October, 1889. 
 129 Pennsylvania State, 463. 
 
 Opinion, Mr. Justice CLARK. 
 
 This case came into the Common Pleas of Dauphin county upon an 
 appeal from a settlement made by the auditor general, etc., for state 
 taxes on corporate loans, under the fourth section of the act of June 
 30, 1885, for the year 1887. It was tried by the court by agreement 
 of the parties under the act of 1874. The learned judge of the court 
 below found as matter of fact that $2,378,000 of the company's bonds 
 were owned and possessed by residents of Pennsylvania, of which 
 $852,000 were held by individuals, and the residue by corporations. 
 The principal questions raised on this record are ruled by Common- 
 wealth v. Delaware Div. Canal Co., 123 Pa., 594; Lehigh Valley R. 
 Co. v. Commonwealth, and Commonwealth v. Lehigh Valley R. Co., 
 the last two cases decided at this term and not yet reported (ante, 
 429). The only remaining question for our consideration is, whether 
 or not the defendant company, being a foreign corporation is liable 
 to be charged with State taxes at the rate of three mills on the dollar 
 on their bonds held by individuals and firms resident within the state, 
 as above stated. 
 
 The Xew York, Lake Erie and Western Railroad Company is a 
 corporation of the state of New York. It was originally incorporated 
 in the year 1832, as the New York & Erie Railroad Company, with 
 power to construct a railroad from the city of New York to Lake 
 Erie, through the southern counties of the state of New York. To 
 avoid certain engineering difficulties, the company was afterwards 
 authorized by the legislature of Pennsylvania, under certain restric- 
 tions to build a specific portion of its road through the counties of 
 Pike and Susquehanna, in this state; acts of February 16. 1841, P. L. 
 28. and March 26, 1846, P. L. 179; the said company, by the 
 act of 1846, being required to pay to the state of Pennsylvania, after 
 the completion of the road, the sum of $10,000 annually. The prop- 
 erty and franchises of the New York & Erie Railroad Company 
 afterwards became vested in the Erie Railway Company, and, in 
 1878, in the New York, Lake Erie and Western Railroad Company. 
 A portion of the defendant's road was made and is still maintained 
 within the limits of this state, and since the completion and equip- 
 ment of the road regular payment has been made by the company 
 to the commonwealth of the said sum of $10,000 annually, pursu-
 
 372 LISTING OF PERSONS AND VALUATION. 
 
 ant to the provisions of the several acts of assembly already referred to. 
 Although a corporation of another state, and, therefore, a foreign 
 corporation, the company is doing business in this state. By a cer- 
 tificate filed in the ofiice of the secretary of the commonwealth, pursu- 
 ant to the act of 22d April, 1874, the defendants have designated a 
 place of business and an agent to represent them; they are, there- 
 fore, not only duly authorized but, in their operation of their road, 
 they are actually engaged in doing business within the limits of this 
 state. 
 
 The fourth section of the act of 1885 applies not only to all 
 private corporations, created by and under the laws of this state or 
 of the United States, but to such as are doing business in this com- 
 monwealth. 
 
 The only question raised by the remaining assignments are, first, 
 whether the provision of the fourth section of the act of 1885, so 
 far as it applies to foreign corporations doing business in this 
 state, is a proper exercise of legislative power; and, second, assum- 
 ing this to be .so, whether there is anything in the said provision by 
 which the defendant road was permitted to pass through the counties 
 of Pike and Susquehanna, which would exempt the company from 
 the obligation of this act. 
 
 Upon the first question suggested, there can, we think, be but 
 little room for discussion. In the Delaware Div. Canal Company case, 
 already referred to, we said: 
 
 "Foreign corporations, exercising their franchises under the laws 
 of other states and countries, are beyond the reach of our process of 
 taxation. We could not require them ordinarily to comply with any 
 such regulation of our law, and, therefore, they are necessarily 
 excluded from the provisions of the act. Such foreign corporations 
 as are engaged in business in the state might doubtless be required 
 to comply as a condition of their right so to do, but this could only 
 embarrass the action of the local assessor, and upon this ground, 
 doubtless, they were wisely excluded from the operation of the act." 
 
 The last member of the concluding sentence of the paragraph 
 quoted is a mere inadvertence. The fourth section of the act of 1885 
 does in terms embrace such foreign corporations as are engaged in 
 business in this state, and the question now to be considered is, 
 whether or not such a provision as respects the New York, Lake Erie 
 & Western Railroad Company is a proper exercise of the legislative 
 power of the state. The general statement that foreign corporations 
 are ordinarily beyond the reach of our processes of taxation is un-
 
 COMMONWEALTH V. X. Y., L. E. & W. R. CO. 373 
 
 doubtedly correct, but when a foreign corporation comes into Penn- 
 sylvania and engages in business here, undoubtedly it does so subject 
 itself to the general policy of, and the course of legislation in the 
 state: Runyan v. Coster, 14 Pet. 122. A foreign corporation can 
 exercise its franchises in Pennsylvania only in so far as it may be 
 permitted by the local sovereign. The right rests wholly in the com- 
 ity of the states: Paul v. Virginia, 8 Wall. 168. A corporation oi 
 one state cannot do business in another state without the latter's con- 
 sent, express or implied, and that consent may be accompanied with 
 such conditions as the latter may think proper to impose: St. Clair 
 v. Cox, 106 U. S., 350. These conditions will be valid and effectual, 
 provided they are not repugnant to the constitution or laws of the 
 United States, inconsistent with the jurisdietional authority of the 
 state, or in conflict with the rule which forbids condemnation without 
 opportunity for defense: Lafayette Insurance Co. v. French, 18 
 How. 404 ; Doyle v. Insurance Co., 94 U. S. 535 ; Pembina Mfg. Co. 
 v. Pennsylvania, 125 U. S. 181. 
 
 It was competent for the legislature of Pennsylvania to impose as 
 a condition upon foreign corporations doing business in this state 
 that they shall assess and collect the tax upon that portion of their 
 loans in the hands of individuals resident within the state, and other- 
 wise comply with the provisions of the act of 1885. The act imposes 
 no tax upon the company; it simply defines a duty to be performed 
 and fixes a penalty for disregard of that duty. The legislature hav- 
 ing so provided, compliance with the act may, in some sense, be said 
 to form one of the conditions upon which corporations may do 
 business within the state, and the corporation continuing its business 
 subsequently would be taken to have assented thereto. 
 
 There is, however, a condition, implied even in the case of domestic 
 corporations, that they will be subject to such reasonable regulations, 
 in respect to the general conduct of their affairs, as the legislature 
 may from time to time prescribe, and such as do not materially 
 interfere with or obstruct the substantial enjoyment of the privileges 
 the state has granted: Chicago v. Needles, 113 U. S. 574. If this 
 be so as to corporations who are entitled to their charter privileges 
 upon the footing of a contract, how much the more is it so as to 
 corporations who are merely permitted by the legislature to do 
 business within this state as a matter of grace and not of right? But 
 it is said that the enforcement of the fourth section of the act of 
 1885 against the defendant corporation would impair the obligation 
 of the contract existing between the commonwealth and the company, 
 as set forth in the private statutes of 1841 and 1846 already referred
 
 374 LISTING OF PEESONS AND VALUATION. 
 
 to. Apart from these statutes the defendant had the right by the 
 comity of the states to contract and to sue within the state of Penn- 
 sylvania, but could exercise no extraordinary franchises or special 
 privileges granted by the state incorporating it, as, for instance, 
 the right to eminent domain, or the privilege of exemption from tax- 
 ation : State v. Boston, etc. R. Co. 25 Vt. 433 ; Middle Bridge Co. v. 
 Marks, 26 Me. 326 ; Taylor on Corp., 386. It was for the exercise of 
 this extraordinary privilege and power of the state, the annual pay- 
 ment of $10,000 was stipulated. There is nothing in the act to indi- 
 cate that this sum was paid in lieu of taxes, or for exemption from 
 any duty which might otherwise be imposed upon the company, but 
 for the privilege of exercising the right of eminent domain in the 
 location of their road through the counties mentioned, under restric- 
 tions particularly specified. The effect of these acts of 1841 and 
 1846 was not to declare the company a corporation of the com- 
 monwealth, but, as Mr. Justice Thompson said in New York & Erie 
 B. Co. v. Young, 33 Pa. 175, "for the purposes of these acts the 
 rights involved are to be tested and judged by the same rules of law 
 as if the company had been primarily incorporated by this common- 
 wealth. So far as the road runs through this state under the privi- 
 leges granted to it, the company is a quasi Pennsylvania corporation. 
 The right of eminent domain, within the restrictions of the grant, 
 was as fully conferred on them by the act of February 16, 1841, as it 
 ever is conferred on corporations exclusively within the state, and 
 their rights and duties under the privileges granted must be ruled by 
 the same principles." One state may make a corporation of another 
 state, as there organized and conducted, a corporation of its own, 
 quoad property within its territorial jurisdiction: Railroad Co. v. 
 Harris, 12 Wall. 65-82; Graham v. Railroad Co. 118 Pa. (?) 168. 
 Thus it will be seen that the defendant exercises powers and franchises 
 which they have received directly from the legislation of Pennsyl- 
 vania; that a part of their property is actually within the limits of 
 this state, and receives the protection of our laws, and there is no 
 good reason why the company should not be held subject to the same 
 regulations as corporations of our own state. We are of opinion 
 that on this branch of the case the court was right. 
 
 The judgment is affirmed. 
 
 This general principle has been upheld by the Supreme Court of the United 
 States as to domestic corporations, Bell's Gap R. R. Co v. Penna. 134 U. S. 
 232 ; but was not permitted to be applied in the case of a foreign corporation 
 as to payments of interest even to bondholders residing in the state, where 
 such payments were made in another state. Erie R. R. Co. v. Penna 153 
 U. S. 628.
 
 PEOPLE V. HORN SILVER MINING CO. 375 
 
 PEOPLE V. HORN SILVER MINING CO. 
 
 Court of Appeals of New York. March, 1887. 
 105 New York, 76. 
 
 Appeal from judgment of the General Term of the Supreme Court, 
 in the third judicial department, entered upon an order made Novem- 
 ber 17, 1885, which affirmed a judgment in favor of plaintiff, entered 
 upon the report of a referee. (Reported below, 38 Hun. 276.) 
 
 The nature of the action and the material facts are stated in the 
 opinion. 
 
 EABL, J. This action was commenced to recover certain taxes 
 claimed to be due from the defendant under chapter 542 of the 
 Laws of 1880, as amended by chapter 3G1, of the Laws of 1881, and 
 chapter 151 of the Laws of 1882. 
 
 Second. It is claimed that the defendant was not, during the 
 years 1881 and 1882 "doing business in this State/' and that, there- 
 fore it was not liable to taxation under the act of 1881. It is quite 
 true that by far the larger share of its business was carried on in 
 Utah, and at Chicago. But its president, secretary and treasurer had 
 their offices in New York; the directors held their annual meetings 
 there; its dividends were declared and paid there; its silver bullion 
 was all sent there and sold there and the proceeds of it received there ; 
 some of the proceeds were deposited in banks, some loaned in the city 
 of New York and some of it used for the purposes of the company in 
 that city, and the balance was transferred to Chicago and Utah for 
 use in the business of the company. There was thus a very substan- 
 tial portion of its business done in the city of New York. The busi- 
 ness did not consist of occasional transactions, but an office was kept 
 there, and the business continuously transacted there during the 
 whole year. We cannot construe the words "doing business in this 
 State" to mean the whole business of the corporation within this 
 State ; and while we are not prepared to hold that an occasional busi- 
 ness transaction, that keeping an office where meetings of the directors 
 are held, transfer books kept, dividends declared and paid, and 
 other business merely incidental to the regular business of the corpo- 
 ration is done would bring a corporation within this act; yet when, 
 as in this case, all these things are done and in addition thereto a 
 substantial part of the regular business of the corporation is carried 
 on here, then we are unable to say that the corporation is not brought 
 within the act as one "doing business in this State." There is no
 
 376 LISTING OF PERSONS AND VALUATION. 
 
 injustice in subjecting to taxation such a corporation enjoying the 
 benefits of our great mart, the advantages of our social order and the 
 protection of our laws. 
 
 Third. It is further claimed that in computing the taxes, only 
 the amount of defendant's capital employed within this State should 
 have been taken as the basis and not its entire capital. We do not 
 perceive how it is possible to limit the computation of the taxes as 
 thus claimed. . . . ; . , . 
 
 It is very clear from this review of the two sections, that the 
 whole capital stock, the same stock upon which dividends are declared 
 and paid, is to be taken as the basis of taxation. And so we held in 
 People v. Equitable Trust Co. (96 N. Y. 387), where we said that 
 "we find no authority in this act for apportioning a tax upon such a 
 corporation as this upon the amount of dividends earned in this 
 State, or upon the amount of capital stock employed in this State." 
 
 Our conclusion is that the judgment should be affirmed, with costs. 
 All concur except PECKHAM, J., dissenting and RAPALLO, J., not 
 voting. 
 
 Judgment affirmed. 
 
 HORN SILVER MINING CO. V. NEW YORK STATE. 
 
 Supreme Court of the United States. February, 1892. 
 134 United States, 305. 
 
 Mr. Justice FIELD delivered the opinion of the court. 
 
 A corporation being the mere creature of the legislature, its rights, 
 privileges and powers are dependent solely upon the terms of its 
 charter. . . . The right and privilege, or the franchise, as it may 
 be termed, of being a corporation, is of great value to its members, 
 and is considered as property separate and distinct from the property 
 which the corporation itself may acquire. According to the law of 
 most States this franchise or privilege of being a corporation is 
 deemed personal property, and is subject to separate taxation. 
 
 The granting of the rights and privileges which constitute the 
 franchises of a corporation being a matter resting entirely within the 
 control of the legislature, to be exercised in its good pleasure, it may 
 be accompanied with any such conditions as the legislature may deem 
 most suitable to the public interests and policy. It may impose as a
 
 HORN SILVER MINING CO. V. NEW YORK. 3V f 
 
 condition of the grant, as well as, also, of its continued exercise, the 
 payment of a specific sum to the State each year, or a portion of the 
 profits or gross receipts of the corporation, and may prescribe such 
 mode in which the sum shall be ascertained as may be deemed con- 
 venient and just. There is no constitutional inhibition against the 
 legislature adopting any mode to arrive at the sum which it will exact 
 as a condition of the creation of the corporation or of its continued 
 existence. There can be, therefore, no possible objection to the 
 validity of the tax prescribed by. the statute of New York, so far as 
 it relates to its own corporations. Nor can there be any greater objec- 
 tion to a similar tax upon a foreign corporation doing business by its 
 permission within the State. As to a foreign corporation and all 
 corporations in States other than the State of its creation are deemed 
 to be foreign corporations it can claim a right to do business in 
 another State, to any extent, only subject to the conditions imposed by 
 its laws. 
 
 This doctrine has been so frequently declared by this court that it 
 must be deemed no longer a matter of discussion, if any question can 
 ever be considered at rest. 
 
 Only two exceptions or qualifications have been attached to it in 
 all the numerous adjudications in which the subject has been con- 
 sidered, since the judgment of this court was announced more than 
 half a century ago in Bank of Augusta v. Earle, 13 Pet. 519. One 
 of these qualifications is that the State cannot exclude from its 
 limits a corporation engaged in interstate or foreign commerce, estab- 
 lished by the decision in Pensacola Telegraph Co. v. Western Union 
 Telegraph Co. 96 U. S. 1, 12. The other limitation on the power of 
 the State is, where the corporation is in the employ of the general 
 government, an obvious exception, first stated, we think, by the 
 late Mr. Justice Bradley in Stockton v. Baltimore & New York Rail- 
 road, 32 Fed. 9, 14. As that learned justice said: "If Congress 
 should empio)' a corporation of ship-builders to construct a man-of- 
 war, they would have the right to purchase the necessary timber and 
 iron in any State of the Union." And this court, citing this passage, 
 added, "without the permission and against the prohibition of the 
 State." Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 186. 
 
 Having absolute power of excluding the foreign corporation the 
 State may, of course, impose such conditions upon permitting the 
 corporation to do business within its limits as it may judge expe- 
 dient; and it may make the grant or privilege dependent upon the 
 payment of a specific license tax, or a sum proportioned to the
 
 378 LISTING OF PEKSONS AND VALUATION. 
 
 amount of its capital. No individual member of the corporation, or 
 the corporation itself, can call in question the validity of any exaction 
 which the State may require for the grant of its privileges. It does 
 not lie in any foreign corporation to complain that it is subjected to 
 the same law with the domestic corporation. The counsel for the 
 appellant objects that the statute of New York is to be treated as 
 a tax law, and not as a license to the corporation for permission to 
 do business in the State. Conceding such to be the case we do not 
 perceive how it in any respect affects the validity of the tax. How- 
 ever it may be regarded, it is the condition upon which a foreign 
 corporation can do business in the State, and in doing such business 
 it puts itself under the law of the State, however that may be charac- 
 terized. 
 
 The only question therefore open to serious consideration in this 
 case is one of fact : Did the Horn Silver Mining Company do business 
 as a corporation within the State? The reference found such to be 
 the fact, as a conclusion from many probative circumstances in the 
 case. That finding was never set aside, but stands approved by the 
 courts of New York. 
 
 There seems to be a hardship in estimating the amount of the tax 
 upon the corporation, for doing business within the State, according 
 to the amount of its business or capital without the State. That is 
 a matter, however, resting entirely in the control of the State, and 
 not a matter of Federal law, and with which, of course, this court 
 can in no way interfere. 
 
 Since this tax was levied the law of the State has been altered, and 
 now the tax upon foreign corporations doing business in the State 
 is estimated by the consideration only of the capital employed within 
 the State. It is said that against nearly all other foreign corporations, 
 except this one, the taxes upon their franchises have been computed 
 upon the basis of the capital employed within the State; but as to 
 that we can only repeat what was said in the Court of Appeals of the 
 State, that, if this be true, the defendant may have reason to complain 
 of unjust discrimination and may properly appeal for relief to the 
 legislature of the State, but that it is not within the power of the 
 court to grant any relief however great the hardship upon it. 
 
 The extent of the tax is a matter purely of state regulation, and 
 any interference with it is beyond the jurisdiction of this court. 
 The objection that it operates as a direct interference with interstate 
 commerce we do not think tenable. The tax is not levied upon 
 articles imported, nor is there any impediment to their importation.
 
 PEOPLE EX EEL. HOYT V. COMMISSIONERS. 37!) 
 
 The products of the mine can be brought into the State and sold there 
 without taxation, and they can be exhibited there for sale in any 
 office or building obtained for that purpose; the tax is levied only 
 upon the franchise or business of the company. 
 
 Judgment affirmed. 
 Mr. Justice HARLAN dissented. 
 
 Taxes discriminating against foreign corporations as compared with 
 domestic corporations are perfectly proper provided they do not violate the 
 interstate commerce provision of the constitution. Paul v. Virginia, 8 Wallace 
 183 ; see also Firemen's Fund v. Roome, 93 N. Y. 313. But the state cannot 
 exclude from its limits a corporation engaged in interstate commerce. McCall 
 v. California, 136 U. S. 104, and Norfolk & Western R. R. Co. v. Pennsylvania, 
 136 U. S. 114. As to the taxation of domestic corporations see Home Insur- 
 ance Co. v. New York, 134 U. S. 594; Philadelphia and Southern Steamship 
 Co. v. Pennsylvania, 122 U. S. 326; State Tax on Railway Gross Re- 
 ceipts, 15 Wallace (U. S.) 284; case of the State Freight Tax, 15 Wallace (U. 
 S.) 23 supra. For state taxation of foreign corporations see Western Union 
 Telegraph Co. v. Borough of New Hope, 187 U. S. 419 ; Ratterman v. Western 
 Union Telegraph Co. 127 U. S. 411; Pickard v. Pullman, etc., Co. 117 U. S. 
 34 supra; and Pullman, etc., Co. v. Pennsylvania, 141 U. S. 18, Adams Express 
 Co. v. Ohio State Auditor, 165 U. S. 194; Gloucester Ferry Co. v. Pennsyl- / 
 vania, 114 U. S. 196 supra. 
 
 IV. SITUS OF PROPERTY. 
 PEOPLE EX REL HOYT V. COMMISSIONERS. 
 
 Court of Appeals of New York. June, 1861. 
 23 New York, 224- 
 
 Appeal from the Supreme Court. Upon a certiorari to the Com- 
 missioners of Taxes and Assessments for the city and county of New 
 York, they made a return from which these facts appeared : The 
 relator was assessed $4,000 for personal property. He applied for 
 a correction of the assessment, and testified that the value of all 
 his personal property within this State was exceeded in amount by his 
 just debts and liabilities. He also stated that he had personal 
 property outside of this State, of the value of $4,000 over and above 
 his debts and liabilities. The commissioners thereupon declined to 
 correct the assessment. They, however, requested the relator to sub- 
 mit a written statement of his demand, and of the facts upon which it 
 was based. In compliance with this request, he presented an affida- 
 vit showing that he was a merchant having his principal place of
 
 380 LISTING OF PERSONS AND VALUATION, 
 
 business in the city of New Orleans, and having an office in New 
 York, where he resided, only for the purchase of goods. He reiterated 
 his previous statement that his personal property within this State 
 did not exceed the amount of his debts, and declared that he had 
 no other personal property except capital employed in his business in 
 New Orleans, "which is taxed and taxable there, and farm, stock, and 
 household furniture in the State of New Jersey, which are taxable by 
 the laws of the said State of New Jersey." The commissioners decided 
 that personal property has no situs, but follows the person, and "there- 
 fore denied his application for remission, notwithstanding that the 
 goods and chattels owned by him are in the city of New Orleans, and 
 without the State of New York." The assessment was adjudged valid, 
 and affirmed, at general term in the first district, and an appeal was 
 taken to this court. 
 
 COMSTOCK, C. J. The legislature in defining property which is 
 liable to taxation, have used the following language: "All lands 
 and all personal estate within this State, whether owned by individuals 
 or corporations, shall be liable to taxation subject to the exemptions 
 hereinafter specified." (1 R. S., 387, 1). The title of the act in 
 which this provision is contained is, "of the property liable to taxa- 
 tion," and it is in this title that we ought to look for controlling 
 definitions on the subject. Other enactments relate to the details of 
 the system of taxation, to the mode of imposing and collecting the 
 public burdens, and not to the property or subject upon which it is 
 imposed. In order, therefore, to determine the question now before 
 us, the primary requisite is to interpret justly and fairly the language 
 above quoted. 
 
 "All lands and all personal estate within this State shall be liable to 
 taxation." If we are willing to take this language, without attempt- 
 ing to obscure it by introducing a legal fiction as to the situs of per- 
 sonal estate, its meaning would seem to be plain. Lands and personal 
 property having an actual situation within the State are taxable, and 
 by a necessary implication no other property can be taxed. I know 
 not in what language' more appropriate or exact, the idea could have 
 been expressed. Real and personal estate are included in precisely the 
 same form of expression. Both are mentioned as being within the 
 State. It is conceded that lands lying in another State or country, 
 cannot be taxed against the owner resident here, and no one ever 
 supposed the contrary. Yet it is claimed that goods and chattels 
 situated in Louisiana, or in France, can be so taxed. The legislature, 
 I suppose, could make this distinction, but that they have not made 
 it, the language of the statute is perfectly clear. Nor is the reason
 
 PEOPLE EX REL. HOYT V. COMMISSIONERS. 381 
 
 apparent why such a distinction should be made. Lands have an 
 actual situs, which, of course, is immovable. Chattels also have an 
 actual situs, although they can be moved from one place to another. 
 Both are equally protected by the laws of 'the State or sovereignty in 
 which they are situated, and both are chargeable there with public 
 burdens, according to all just principles of taxation. A purely poll 
 tax has no respect to property. We have no such tax. With us taxa- 
 tion is upon property, and so it is in all the States of the Union. So 
 also in general, it is in all countries. The logical result is, that the 
 tax is incurred within the jurisdiction and under the laws of the 
 country where it is situated. If we say that taxation is on the person 
 in respect to the property, we are still without a reason for assessing 
 the owner resident here, in respect to one part of his estate situated 
 elsewhere, and not in respect to another part. Both, I repeat, are the 
 subjects of taxation in the foreign jurisdiction. If then the owner 
 ought to be subjected to a double burden as to one, why not as to 
 the other also? 
 
 I find then no room for interpretation, if we take the words of the 
 statute in their plain ordinary sense. The legislative definition of tax- 
 able property, refers in that sense to the actual situs of personal not 
 less than real estate. If the intention had been different, it cannot be 
 doubted that different language would have been used. 
 
 It is said, however, that personal estate by a fiction of law has no 
 situs away from the person or residence of the owner, and is always 
 deemed to be present with him at the place of his domicil. The right 
 to tax the relator's property situated in New Orleans and New Jersey, 
 rests upon the universal application of this legal fiction; and it is 
 accordingly insisted upon as an absolute rule or principle of law 
 which, to all intents and purposes, transfers the property from the 
 foreign to the domestic jurisdiction, and thus subjects it to taxation 
 under our laws. Let us observe to what results such a theory will 
 lead us. The necessary consequence is, that goods and chattels actually 
 within this State are not here in any legal sense 1 , or for any legal 
 purpose, if the owner resides abroad. They cannot be taxed here be- 
 cause they are with the owner who is a citizen or subject of some 
 foreign State. On the same ground, if we are to have harmonious 
 rules of law, we ought to relinquish the administration of the effects 
 of a person resident and dying abroad, although the claims of domestic 
 creditors may require such administration. So, in the case of the 
 bankruptcy of such a person, we should at once send abroad his effects, 
 and cannot consistently retain them to satisfy the claims of our own
 
 382 LISTING OF PERSONS AND VALUATION. 
 
 citizens. Again, we ought not to have laws for attaching the per- 
 sonal estate of non-residents, because such laws necessarily assume 
 that it has a situs entirely distinct from the owner's domicil. Yet 
 we do in certain cases, administer upon goods and chattels of a foreign 
 decedent ; we refuse to give up the effects of a bankrupt until creditors 
 here are paid; and we have laws of attachment against the effects of 
 non-resident debtors. These, and other illustrations which might be 
 mentioned, demonstrate that the fiction or maxim mobilia personam 
 sequuniur is by no means of universal application. Like other fic- 
 tions, it has its special uses. It may be resorted to when convenience 
 and justice so require. In other circumstances the truth and not the 
 fiction affords as it plainly ought to afford, the rule of action. The 
 proper use of legal fictions is to prevent injustice, according to the 
 maxim, in fictione juris semper aequitas existat. "No fiction," says 
 Blackstone, "shall extend to work an injury; its proper operation 
 being to prevent a mischief or remedy an inconvenience, which might 
 result from the general rule of law." So, Judge Story, referring to 
 the situs of goods and chattels, observes: "The general doctrine is 
 not controverted, that although movables are for many purposes to 
 be deemed to have no situs, except that of the domicil of the owner, 
 yet this being but a legal fiction it yields whenever it is necessary, for 
 the purpose of justice, that the actual situs of the thing should be 
 examined." He adds, quite pertinently, I think, to the present ques- 
 tion, "a nation within whose territory any personal property is actually 
 situated, has an entire dominion over it while therein, in point of 
 sovereignty and jurisdiction, as it has over immovable property sit- 
 uated there." (Confl. of Laws, 550). I can think of no more just 
 and appropriate exercise of the sovereignty of a State or nation over 
 property, situated within it and protected by its laws, than to compel 
 it to contribute toward the maintenance of government and law. 
 
 Accordingly there seems to be no place for the fiction of which we 
 are speaking, in a well adjusted system of taxation. In such a sys- 
 tem a fundamental requisite is that it be harmonious. But harmony 
 does not exist unless the taxing power is exerted with reference exclu- 
 sively either to the situs of the property, or to the residence of the 
 owner. Both rules cannot obtain unless we impute inconsistency to 
 the law, and oppression to the taxing power. 
 
 It seems to follow then inevitably that before we can uphold the tax 
 which has been imposed upon the relator's property situated in Now 
 Orleans and New Jersey, we must first determine, that if he resided 
 there, and the same goods and chattels were located here, they could
 
 PEOPLE EX EEL. HOYT V. COMMISSIONERS. 383 
 
 not be taxed as being within the State. Such a determination, I am 
 satisfied, would contravene the plain letter of the statute as well as all 
 sound principles underlying the subject. 
 
 Let us now take in, at a single view, all the legislation of the State 
 which constitutes the existing code on this subject. We have, in the 
 first place, the fundamental definition which is the basis of all taxa- 
 tion, describing the subject as "all real and all personal estate within 
 this State." The same revisers and the same legislators who thus 
 defined the basis, prescribed the mode of assessment. Every owner of 
 personal estate was to be assessed in the town or ward where he re- 
 sided, but this alone would not embrace the case of a non-resident, 
 whose property was within the State. But there is no such thing as 
 a vacant possession of personal estate. Therefore the term owner was 
 made to include trustees, guardians, &c., and they were to be assessed 
 for property in their possession or under their control, whoever and 
 wherever the beneficial owner might be. In that mode, the estates 
 of non-residents having a situs here were reached. But it was at least 
 doubtful whether the terms trustees, guardians, &c., were sufficiently 
 descriptive to include property of non-residents situated here, under 
 all conditions which ought to subject it to taxation. The more com- 
 prehensive word "agent*' therefore, was added in 1851; but in order 
 that this word might not carry the principle to results unjust and 
 inexpedient, the legislature with becoming caution made at the same 
 time a special exception in favor of property and money sent here 
 from other States for sale or investment. The very language of the 
 exception was an unmistakable assertion of the principle. Then in 
 1855, a serious defect in the system had been developed. Non-resi- 
 dents of the State were found to be personally, either as principals or 
 partners, in the possession and management of large capitals or estates 
 within the State. They could not be assessed, as the laws were, and 
 there was no agent or trustee to assess in respect to property thus sit- 
 uated. The system was accordingly improved and extended so as to 
 embrace such cases. 
 
 Thus we have a system apparently symmetrical and complete, ac- 
 cording to which all personal estate having an actual situs in this 
 State is brought within the sphere of taxation without regard to the 
 domicil of the owner, with only special exceptions dictated by policy 
 and justice. And if this be the rule of taxation where the situs of 
 the thing to be taxed, and the domicil of the owner are different, it 
 is conceded that the opposite rule cannot and does not prevail. Pro- 
 ceeding on this rule, Louisiana and New Jersey very justly imposed
 
 384 LISTING OF PERSONS AND VALUATION. 
 
 a share of their public burdens on the property of the relator situated 
 in those States. The State of New York will do the same thing in 
 respect to the citizens of those States having property here, but it is 
 not so unjust to its own citizens as to load them with double burdens 
 by proceeding on the opposite principle also. I am confident there 
 is nothing in all our legislation which affords any ground for imput- 
 ing to it such inconsistency and injustice 
 
 I conclude the discussion of this question by a brief reference to 
 the course of decision in other courts of this country. In the 
 case of The City of New Albany v. Meekin, (3 Ind. E. 481), the 
 charter of the town conferred the right of taxing all real and all per- 
 sonal estate within the city. The defendant was a resident of the city, 
 and was assessed in respect to a steamboat enrolled at Louisville, and 
 which touched only occasionally at New Albany. The action was debt, 
 to recover the amount of the assessment. But it was held that the tax 
 was illegal, and that no recovery could be had. The Supreme Court 
 observed, "the only question we have to consider is, whether the boat, 
 or the defendant's share, is within the city." The same point arose 
 upon a grant of the right of taxation, in the same words, in the case 
 of Wilkey v. The City of PeTcin (19 111. E., 160), and the question 
 was determined in the same way. The court said : "as a general rule 
 personal property follows the person of the owner, but municipal 
 corporations have no power to protect property not within their corpo- 
 rate limits, nor can they render any equivalent for the right of tax- 
 ing such property, and there is no propriety in the application of this 
 rule to them for the purposes of revenue." "It is evident," the court 
 added, "that the legislature intended to confine the power of taxation 
 to property actually within the territorial jurisdiction." In Johnson 
 v. The City of Lexington, (14 B. Munroe, 648), the city government 
 under its charter had authority to make a list of its taxable inhabit- 
 ants, and to assess against them their real estate within the city, and 
 also the just and true value of such personal estate as the Mayor, 
 &c. should designate. The Court of Appeals of Kentucky held that 
 this power extended only to personal estate within the city, and that 
 the property referred to was such as had an actual situs, and not 
 merely such as had a legal or constructive status within the city, and 
 which, they observed, is regarded only "for some purposes as being 
 with its owner where he is domiciled." In Finley v. The City of 
 Philadelphia, (32 Penn. 381), the plaintiff was a surgeon in the United 
 States army, stationed and keeping house in that city, but without 
 any domiciliary intention. He was assessed in respect to his house- 
 hold furniture, and claimed to be exempt in consequence of his non-
 
 PEOPLE EX REL. HOYT V. COMMISSIONERS. 385 
 
 residence and occupation. But the Supreme Court decided other- 
 wise; Chief Justice LOWRIE observing: "there is nothing poetical 
 about tax laws. Wherever they find property, they claim a contri- 
 bution for its protection without any special respect to the owner or 
 his occupation." In Catlin v. Hull (21 Verm. 152), a person resid- 
 ing in New York owned personal estate, consisting of notes and other 
 obligations of debtors who were residents of the State of Vermont. 
 These he had deposited with the plaintiff, residing in the town of 
 Orwell in that State, as his agent, for management, collection and 
 investment, and the plaintiff being such agent was assessed in that 
 capacity for the estate thus in his hands. His own property being 
 seized on the warrant for the collection of the tax, he brought tres- 
 pass for such seizure, and the only question was, whether the prop- 
 erty of the non-resident owner was subject to taxation in that town. 
 The statute of that State, very much like ours, provided that per- 
 sonal estate held in trust by an executor, administrator, agent or 
 trustee, should be assessed to such executor. &c. Among the propo- 
 sitions argued on behalf of the plaintiff it was insisted that per- 
 sonal estate, and especially debts due, having no fixed situs, follow 
 the person and are to be considered as situate where his domicil 
 is, and hence that the property in question could not be taxed, be- 
 cause the owner was domiciled out of the State. If such was the 
 intention of the legislature, it was denied that they had the power 
 of taxation in such a case. The argument was carefully considered, 
 and was rejected by the Supreme Court of that State. After referring 
 to and recognizing the fiction insisted on, it was observed by the 
 "court: "But this rule is merely a legal fiction, adopted from con- 
 siderations of general convenience and policy for the benefit of com- 
 merce, and to enable persons to dispose of property at their decease, 
 agreeably to their wishes, without being embarrassed by their want of 
 knowledge in relation to the laws of the country where the same is 
 situated. "But this doctrine," it was added, "in relation to the situs 
 of personal chattels, and their transfer and distribution, we do not 
 consider as at all conflicting with the actual jurisdiction of the State 
 where it is situate, over it, or with the right to subject it, in com- 
 mon with the other property of the State, to share in the burden of 
 government by taxation." And it was further observed, "we are not 
 only satisfied that this method of taxation is well founded in prin- 
 ciple and upon authority, but we think it entirely just and equitable, 
 that if persons residing abroad bring their property and invest it in 
 this State for the purpose of deriving profit from its use and employ- 
 ment here, and thus avail themselves of the benefit and advantages of 
 25
 
 386 LISTING OF PERSONS AND VALUATION. 
 
 our laws for the protection of their property, their property should 
 vield its due proportion towards the support of the government which 
 thus protects it." 
 
 The cases which I have referred to were determined by the highest 
 courts in five States of the Union. They appear to be entirely per- 
 tinent to the question now before us, and I am not aware of a single 
 decision to the contrary, except the one under review. These cases not 
 only establish a construction of statutes framed like our own, but 
 they all assert the principles of taxation, which lie at the very founda- 
 tion of the subject. (See also Story's Confl. of Laws, pp. 19, 462). 
 My conclusion, therefore, derived from the statutes, from these au- 
 thorities and from the reasons of a general nature which ought to 
 influence the decision of such a question, is that the relator was not 
 subject to taxation for his personal estate, having an actual situa- 
 tion in New Jersey and Louisiana. This conclusion is intended to 
 embrace only property which is visible and tangible, so as to be 
 capable of a situs away from the owner or his domicil ; and I do not 
 consider the question in reference to personal estate of a different 
 description. It must be within the State in order to be subject to 
 taxation, for so is the statute; but that may be true of choses in 
 action, and obligations for the payment of money due to a creditor 
 resident here, from a debtor whose domicil is in another State. If the 
 securities are separated from the person and domicil of the owner, 
 and are actually in the hands of an agent in another State for col- 
 lection, investment and reinvestment there, it may be that capital 
 thus situated should be regarded as foreign and not domestic, in the 
 absence of any special statutory provision intended for such a case. 
 Questions of this character need not now be determined. It may be 
 proper to add in respect to chattels which are in transit through the 
 State, that they ought not to be considered as having a situs here, 
 so as to be subject to taxation. On the other hand, I have no doubt 
 that ships at sea, registered at a port within this State and conse- 
 quently having no situs elsewhere, are justly taxable to the resident 
 owner. 
 
 The judgment of the Supreme Court should be reversed, and judg- 
 ment must be rendered that the assessment roll be corrected by strik- 
 ing therefrom the assessment against the relator. 
 
 SELDEN, LOT, JAMES and DA VIES, Js., concurring. 
 
 Ordered accordingly. 
 
 Cases in this collection relative to the situs of land for the purposes of 
 taxation are: Matter of Swift, 137 N. Y. 77; Miller v. Pennsylvania, 111 Pa. 
 St. 321 ; Estate of Handley, 181 Pa. St. 339 supra.
 
 PEOPLE EX EEL. JEFFERSOX V. SMITH. 387 
 
 PEOPLE EX EEL JEFFERSON V. SMITH ET AL. 
 ASSESSORS, &C. 
 
 Court of Appeals of New York. April, 1882. 
 88 New York, 576. 
 
 EARL, J. The appellants, as assessors of the village of Warsaw, 
 in 1880, assessed the relator for $250,000 personal property. The 
 property so assessed consisted of mortgage securities taken by agents 
 of the relator, residents in the States of Illinois, Minnesota and Wis- 
 consin, who retained the custody of the securities so taken which 
 were never brought within the territorial limits of the State of Xew 
 York, and which were, at all times after they were taken, in the pos- 
 session and under the control of such non-resident agents. All in- 
 terest payable on such securities was paid directly to the agents, and, 
 with the exception of small sums remitted to the relator for family 
 expenses and used as such, and money remitted to and used by him 
 to pay his debts, such interest was invested by the agents in like man- 
 ner with the principal, and the securities taken therefor were held in 
 like manner as the original securities. When the principal of the 
 securities became due and was paid, it was paid to the agents and by 
 them reinvested in like manner as the original investments, and such 
 new securities were held by the agents in like manner as the original 
 securities. The agents had power to discharge the securities on pay- 
 ment of the same, and did so discharge them, and they had power 
 to accept applications for loans, and make loans without submitting 
 the same to the relator for approval. The funds so kept for invest- 
 ment, until the same were invested were kept in the names of the 
 agents. By the laws of the States where such securities were so 
 taken and held, they were subject to taxation under the laws of such 
 States in the hands of the agents. The agents had advertised offices 
 and places of business where the business of the relator in making 
 such loans was carried on and the securities were held. 
 
 After the imposition of the assessment complained of, the relator 
 applied to the appellants as such assessors to correct the assessment- 
 roll by striking the assessment therefrom, and the application was 
 denied. Whereupon the relator, under chapter 269 of the Laws of 
 1880, sued out a writ of certiorari to which the appellants made 
 return, and upon the hearing at the Special Term judgment was 
 rendered striking the assessment from the assessment-roll. The assess- 
 ors appealed from the judgment to the General Term, and from 
 affirmance there to this court.
 
 388 LISTING OF PERSONS AND VALUATION. 
 
 The question for our determination is whether the securities so 
 taken and held for the relator were subject to taxation in this State 
 while in the hands of his non-resident agents. The solution of this 
 question depends upon the construction to be given to the following 
 section of the Revised Statutes: "All lands and all personal estate 
 within this State, whether owned by individuals or by corporations, 
 shall be liable to taxation subject to the exemptions hereinafter speci- 
 fied." (2 R. S. (7th ed.) 981). 
 
 Before the personal estate can be taxed in this State under the 
 statute it must be within the State. There is no more authority for 
 taxing personal property not within the State than there is for tax- 
 ing lands not within the State. The claim, however, of the learned 
 counsel for the assessors is that these securities or the debts secured by 
 them were choses in action which could not be separated or have an 
 actual situs away from the owner, and that they must be treated as 
 existing and present at the domicile of the owner and hence that they 
 are taxable at the place of such domicile. 
 
 It is undoubtedly a general rule of law that movable property is 
 deemed to have no situs except that of the domicile of the owner, 
 yet, this being but a legal fiction, it yields whenever it is necessary 
 for the purpose of justice that the actual situs of the thing should be 
 examined, and whenever the legislative intent is manifested that this 
 legal fiction should not operate. The fiction frequently applies as 
 well to the case of tangible personal property, such as merchandise, 
 as to the case of choses in action. But it was directly held in the 
 case of Hoyi v. The Commissioners of Taxes (23 N. Y. 224), that 
 tangible personal property, having a situs outside of this State could 
 not, under our statutes, be treated as existing at the domicile of the 
 owner in this State for the purpose of taxation here; and it only re- 
 mains to be determined now, whether securities situated like those 
 here in question, are to be treated by operation of the fiction referred 
 to as within this State. I am of opinion that it is sufficiently clear 
 that it was the legislative intent that they should not be so treated. 
 
 That choses in action can have a situs away from the domicile of the 
 owner for the purpose of taxation and for other purposes, is fre- 
 quently manifested in the statutes of this State. 
 
 I think it may safely be said that the legal fiction that choses in 
 action always attend the owner and have a legal existence only at 
 the place of his domicile has been frequently ignored by the legisla- 
 ture in framing our system of taxation, and that it cannot be jesorted 
 to as a safe guide in the construction of the provision of the statute
 
 PULLMAN PALACE CAR CO. V. PENNSYLVANIA. 389 
 
 now under consideration. The statute providing for the taxation of 
 "personal estate within this State" was not intended to subject to 
 taxation, personal securities actually in another State, held, managed 
 and controlled there, under the protection of the laws of that State, 
 and subject to taxation there, in the hands of agents. It cannot 
 be supposed that the legislature intended that our citizens should be 
 subject to taxation here and in other States also upon the same prop- 
 erty, or that it would tax in the hands of agents here securities be- 
 longing to non-resident owners, while it denied the right of other 
 States to tax the securities of our citizens in the hands of agents there. 
 
 It is clear from the statutes .... and the authorities cited 
 and from the understanding of business men in commercial transac- 
 tions, as well as of jurists and legislators, that mortgages, bonds, bills 
 and notes have for many purposes come to be regarded as property 
 and not as the mere evidence of debts, and that they may thus have 
 a situs at the place where they are found, like other visible, tangible 
 chattels. 
 
 Without extending this discussion further, we are therefore of 
 opinion that the judgment should be affirmed. 
 
 All concur. Judgment affirmed. 
 
 PULLMAN'S PALACE CAR CO. V. PENNSYLVANIA. 
 
 Supreme Court of the United States. October, 1890. 
 141 United States, 18. 
 
 Mr. Justice GRAY, after stating the case .... delivered the 
 opinion of the court. 
 
 Upon this writ of error, whether this tax was in accordance with 
 the law of Pennsylvania is a question on which the decision of the 
 highest court of the State is conclusive. The only question of which 
 this court has jurisdiction is whether the tax was in violation of the 
 clause of the Constitution of the United States granting to Congress 
 the power to regulate commerce among the several States. The plain- 
 tiff in error contends that its cars could be taxed only in the State 
 of Illinois, in which it was incorporated and had its principal place 
 of business. 
 
 No general principles of law are better settled, or more funda- 
 mental, than that the legislative power of every State extends to all 
 property within its borders, and that only so far as the comity of that
 
 390 LISTING OF PERSONS AND VALUATION. 
 
 State allows can such property be affected by the law of any other 
 State. The old rule, expressed in the maxim mobilia sequuntur 
 personam, by which personal property was regarded as subject to the 
 law of the owner's domicil, grew up in the Middle Ages, when movable 
 property consisted chiefly of gold and jewels, which could be easily 
 carried by the owner from place to place, or secreted in spots known 
 only to himself. In modern times, since the great increase in amount 
 and variety of personal property, not immediately connected with the 
 person of the owner, that rule has yielded more and more to the lex 
 situs, the law of the place wher,e the property is kept and used. 
 Green v. Van BusTcirTc, 5 Wall. 307, and 7 Wall. 139 ; Hervey v. Rhode 
 Island Locomotive Works, 93 U. S. 664; Harkness v. Russell, 118 
 U. S. 663, 679; Walworth v. Harris, 129 U. S. 355; Story on Conflict 
 of Laws, 550; Wharton on Conflict of Laws, 297-311. 
 
 For the purposes of taxation, as has been repeatedly affirmed by this 
 court, personal property may be separated from its owner; and he 
 may be taxed, on its account, at the place where it is, although not 
 the place of his own domicil, and even if he is not a citizen or a resi- 
 dent of the State which imposes the tax. Lane County v. Oregon, 
 7 Wall. 71, 77; Railroad Co. v. Pennsylvania, 15 Wall. 300, 323, 324, 
 328; Railroad Co. v. Peniston, 18 Wall. 5, 29; Tappan v. Merchants' 
 Bank, 19 Wall. 490, 499; State Railroad Tax Cases, 92 U. S. 575, 
 607, 608; Brown v. Houston, 114 U. S. 622; Coe v. Errol, 116 U. S. 
 517, 524; Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, 123. 
 
 It is equally well settled that there is nothing in the Constitution 
 or laws of the United States which prevents a State from taxing per- 
 sonal property, employed in interstate or foreign commerce, like other 
 personal property within its jurisdiction. Delaware Railroad Tax, 18 
 Wall. 206, 232; Telegraph Co. v. Texas, 105 U. S. 460, 464; Glou- 
 cester Ferry Co. v. Pennsylvania, 114 U. S. 196, 206, 211; Western 
 Union Telegraph Co. v. Attorney General of Massachusetts, 125 U. 
 S. 530, 549; Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, 
 124; Leloup v. Mobile, 127 U. S. 640, 649. 
 
 The tax now in question is not a license tax or a privilege tax; it 
 is not a tax on business or occupation ; it is not a tax on, or because of, 
 the transportation, or the right of transit, of persons or property 
 through the State to other States or countries. The tax is imposed 
 equally on corporations doing business within the State, whether 
 domestic or foreign, and whether engaged in interstate commerce or 
 not. The tax on the capital of the corporation, on account of its
 
 PULLMAN PALACE CAB CO. V. PENNSYLVANIA. 
 
 property within the State is, in substance and effect, a tax on that 
 property. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 209 ; 
 Western Union Telegraph Co. v. Attorney General of Massachusetts, 
 125 U. S. 530, 552. This is not only admitted, but insisted on, by 
 the plaintiff in error. 
 
 The cars of this company within the State of Pennsylvania are 
 employed in interstate commerce; but their being so employed does 
 not exempt them from taxation by the State; and the State has not 
 taxed them because of their being so employed, but because of their 
 being within its territory and jurisdiction. The cars were continu- 
 ously and permanently employed in going to and fro upon certain 
 routes of travel. If they had never passed beyond the limits of 
 Pennsylvania, it could not be doubted that the State could tax them, 
 like other property, within its borders, notwithstanding they were 
 employed in interstate commerce. The fact that, instead of stopping 
 at the state boundary, they cross that boundary in going out and 
 coming back, cannot affect the power of the State to levy a tax upon 
 them. The State, having the right, for the purpose of taxation, to 
 tax any personal property found within its jurisdiction, without re- 
 gard to the place of the owner's domicil, could tax the specific cars 
 which at a given moment were within its borders. The route over 
 which the cars travel extending beyond the limits of the State, par- 
 ticular cars may not remain in the State; but the company has at 
 all times substantially the same number of cars within the State, and 
 continuously and constantly uses there a portion of its property; and 
 it is distinctly found, as matter of fact, that the company con- 
 tinuously, throughout the periods for which these taxes were levied, 
 carried on business in Pennsylvania, and had about one hundred cars 
 within the State. 
 
 The mode which the State of Pennsylvania adopted, to ascertain 
 the proportion of the company's property upon which it should be 
 taxed in that State, was by taking as a basis of assessment such pro- 
 portion of the capital stock of the company as the number of miles 
 over which it ran cars within the State bore to the whole number of 
 miles, in that and other States, over which its cars were run. This 
 was a just and equitable method of assessment ; and, if it were adopted 
 by all the States through which these cars ran, the company would 
 be assessed upon the whole value of its capital stock, and no more. 
 
 The validity of this mode of apportioning such a tax is sustained 
 by several decisions of this court, in cases which came up from the 
 Circuit Courts of the United States, and in which, therefore, the 
 jurisdiction of this court extended to the determination of the whole
 
 392 LISTING OF PEKSONS AND VALUATION. 
 
 case, and was not limited, as upon writs of error to the state courts, 
 to questions under the Constitution and laws of the United States. 
 
 In the State Railroad Tax Cases, 92 U. S. 575, it was adjudged 
 that a statute of Illinois, by which a tax on the entire taxable prop- 
 erty of a railroad corporation, including its rolling stock, capital 
 and franchise, was assessed by the state board of equalization, and was 
 collected in each municiplity in proportion to the length of the road 
 within it, was lawful, and not in conflict with the Constitution of the 
 State; and Mr. Justice Miller delivering judgment said: 
 
 "Another objection to the system of taxation by the State is, that 
 the rolling stock, capital stock and franchise are personal property, 
 and that this, with all other personal property, has a local situs at 
 the principal place of business of the corporation, and can be taxed 
 by no other county, city, or town, but the one where it is so situated. 
 This objection is based upon the general rule of law that personal 
 property, as to its situs, follows the domicil of its owner. It may 
 be doubted very reasonably whether such a rule can be applied to 
 a railroad corporation as between the different localities embraced 
 by its line of road. But, after all, the rule is merely the law of the 
 State which recognizes it; and when it is called into operation as to 
 property located in one State, and owned by a resident of another, 
 it is a rule of comity in the former State rather than an absolute 
 principle in all cases. Green v. Van Buskirk, 5 Wall. 312. Like all 
 other laws of a State, it is, therefore, subject to legislative repeal, 
 modification or limitation; and when the legislature of Illinois de- 
 clared that it should not prevail in assessing personal property of rail- 
 road companies for taxation, it simply exercised an ordinary function 
 of legislation." 92 U. S. 607, 608. 
 
 "It is further objected that the railroad track, capital stock and 
 franchise is not assessed in each county where it lies, according to 
 its value there, but according to an aggregate value of the whole, on 
 which each county, city and town collects taxes according to the 
 length of the track within its limits." "It may well be doubted 
 whether any better mode of determining the value of that portion 
 of the track within any one county has been devised, than to ascer- 
 tain the value of the whole road, and apportion the value within 
 the county by its relative length to the whole." "This court has 
 expressly held in two cases, where the road of a corporation ran 
 through different States, that a tax upon the income or franchise of 
 the road was properly apportioned by taking the whole income . or 
 value of the franchise, and the length of the road within each State, as
 
 PULLMAN PALACE CAR CO. V. PENNSYLVANIA. 393 
 
 the basis of taxation. Delaware Railroad Tax, 18 Wall. 206; Erie 
 Railroad v. Pennsylvania, 21 Wall. 492." 92 U. S. 608, 611. 
 
 So in Western Union Telegraph Co. v. Attorney General of Massa- 
 chusetts, 125 U. S. 530, this court upheld the validity of a tax im- 
 posed by the State of Massachusetts upon the capital stock of a 
 telegraph company, on account of property owned and used by it 
 within the State, taking as the basis of assessment such proportion of 
 the value of its capital stock as the length of its lines within the 
 State bore to their entire length throughout the country. 
 
 Even more in point is the case of Marye v. Baltimore & Ohio Rail- 
 road, 127 U. S. 117, in which the question was whether a railroad com- 
 pany incorporated by the State of Maryland, and no part of whose 
 own railroad was within the state of Virginia, was taxable under the 
 general laws of Virginia upon rolling stock owned by the company, 
 and employed upon connecting railroads leased by it in that State, 
 yet not assigned permanently to those roads, but used inter- 
 changeably upon them and upon other roads in other States, as the 
 company's necessities required. It was held not to be so taxable, 
 solely because the tax laws of Virginia appeared upon their face to 
 be limited to railroad corporations of that State; and Mr. Justice 
 Matthews delivering the unanimous judgment of the court, said : 
 
 "It is not denied, as it cannot be, that the State of Virginia has 
 rightful power to levy and collect a tax upon such property used and 
 found within its territorial limits, as this property was used and 
 found, if, and whenever it may choose, by apt legislation, to exert 
 its authority over the subject. It is quite true, as the situs of the 
 Baltimore and Ohio Railroad Company is in the State of Maryland, 
 that also, upon general principles, is the situs of all its personal prop- 
 erty ; but for purposes of taxation, as well as for other purposes, that 
 situs may be fixed in whatever locality the property may be brought 
 and used by its owner by the law of the place where it is found. 
 If the Baltimore and Ohio Railroad Company is permitted by the 
 State of Virginia to bring into its territory, and there habitually 
 to use and employ a portion of its movable personal property, and 
 the railroad company chooses so to do, it would certainly be com- 
 petent and legitimate for the State to impose upon such property, thus 
 used and employed, its fair share of the burdens of taxation imposed 
 upon similar property used in the like way by its own citizens. And 
 such a tax might be properly assessed and collected in cases like the 
 present, where the specific and individuals items of property so used 
 and employed were not continuously the same, but were constantly 
 changing, according to the exigencies of the business. In such cases,
 
 394 LISTING OF PERSONS AND VALUATION. 
 
 the tax might be fixed by an appraisement and valuation of the average 
 amount of the property thus habitually used, and collected by dis- 
 traint upon any portion that might at any time be found. Of course, 
 the lawlessness of a tax upon vehicles of transportation used by com- 
 mon carriers might have to be considered in particular instances with 
 reference to its operation as a regulation of commerce among the 
 States, but the fact that they were employed as 'vehicles of trans- 
 portation in the interchange of interstate commerce would not render 
 their taxation invalid." 127 U. S. 123, 124. 
 
 For these reasons, and upon these authorities, the court is of 
 opinion that the tax in question is constitutional and valid. The 
 result of holding otherwise would be that, if all the States should 
 concur in abandoning the legal fiction that personal property has its 
 situs at the owner's domicil, and in adopting the system of taxing it 
 at the place at which it is used and by whose laws it is protected, 
 property employed in any business requiring continuous and constant 
 movement from one State to another would escape taxation altogether. 
 
 Judgment affirmed. 
 
 Mr. Justice BRADLEY, with whom concurred Mr. Justice FIELD 
 and Mr. Justice HABLAN, dissenting. 
 
 ADAMS EXPRESS CO. V. OHIO STATE AUDITOR. 
 
 i Supreme Court of the United States. 
 165 United States, 194- 
 
 These are cases involving the constitutionality of certain laws of 
 the State of Ohio providing for the taxation of telegraph, telephone 
 and express companies, and the validity of assessments of express 
 companies thereunder. 
 
 The law created a State board of appraisers and assessors, consist- 
 ing of the auditor of State, treasurer of State and attorney general, 
 which was charged with the duty of assessing the property in Ohio of 
 telegraph, telephone and express companies. By the act as amended, 
 between the first and thirty-fist days of May annually each telegraph, 
 telephone and express company, doing business in Ohio, was required 
 to file a return with the auditor of State, setting forth among other 
 things the number of shares of its capital stock; the par value and 
 market value (or, if there be no market value, then the actual value)
 
 ADAMS EX. CO. V. OHIO STATE AUDITOR. 3J)5 
 
 of its shares at the date of the return; a statement in detail of the 
 entire real and personal property of said companies and where located, 
 and the value thereof as assessed for taxation. Telegraph and tele- 
 phone companies were required to return, also the whole length of 
 their lines, and the length of so much of their lines as is without and 
 is within the State of Ohio, including the lines controlled and used, 
 under lease or otherwise. Express companies were required to include 
 in the return a statement of their gross receipts, from whatever source 
 derived, for the year ending the first day of May, of husiness wherever 
 done; and of the business done in the State of Ohio, giving the re- 
 ceipts of each office in the State; also the whole length of the lines 
 of rail and water routes over which the companies did business, 
 within and without the State. Provision was made in the law for 
 the organization of the board, for the appointing of one of its members 
 as secretary and the keeping of full minutes of its proceedings. The 
 board was required to meet in the month of June and assess the value 
 of the property of these companies in Ohio. The rule to be followed 
 by the board in making the assessment was that "in determining the 
 value of the property of said companies in this State, to be taxed 
 within the State and assessed as herein provided, said board shall be 
 guided by the value of said property as determined by the value of the 
 entire capital stock of said companies, and such other evidence and 
 rules as will enable said board to arrive at the true value in money 
 of the entire property of said companies within the State of Ohio, in 
 the proportion which the same bears to the entire property of said 
 companies, as determined by the value of the capital stock thereof, 
 and the other evidence and rules as aforesaid." 
 
 The valuation of all the real estate of the companies, situated in 
 Ohio, was required to be deducted from the total valuation, as fixed 
 by the board. 
 
 Provisions were made for hearings and for the correction of erro- 
 neous and excessive valuations, 
 
 Mr. Justice FULLER, after stating the case, delivered the opinion 
 of the court. 
 
 The legislation in question is claimed to be repugnant to the Con- 
 stitution of the United States because in violation of the commerce 
 clause of that instrument, and because operating to deprive appellants 
 of their property without due process of law and of the equal pro- 
 tection of the laws.
 
 396 LISTING OF PERSONS AND VALUATION. 
 
 We assume that the assessments complained of were made in pur- 
 suance of the definite rule or principle of appraisement recognized and 
 established by the Nichols law, as construed by the Supreme Court 
 of Ohio, and the question is whether the law prescribing that rule 
 is valid under the Federal Constitution. 
 
 The principal contention is that the rule contravenes the com- 
 merce clause because the assessments, while purporting to be on the 
 property of complainants within the State, are in fact levied on 
 their business, which is largely interstate commerce. 
 
 Although the transportation of the subjects of interstate com- 
 merce, or the receipts received therefrom, or the occupation or busi- 
 ness of carrying it on, cannot be directly subjected to state taxation, 
 yet property belonging to corporations or companies engaged in such 
 commerce may be; and whatever the particular form of the exaction, 
 if it is essentially only property taxation, it will not be considered as 
 falling within the inhibition of the Constitution. Corporations and 
 companies engaged in interstate commerce should bear their proper 
 proportion of the burdens of the governments under whose protection 
 they conduct their operations, and taxation on property, collectible 
 by the ordinary means, does not affect interstate commerce other- 
 wise than incidentally, as .all business is affected by the necessity 
 of contributing to the support of government. Postal Telegraph Cable 
 Co. v. Adams, 155 TL S. 688. 
 
 As to railroad, telegraph and sleeping car companies, engaged in 
 interstate commerce, it has often been held by this court that their 
 property, in the several States through which their lines or busi- 
 ness extended, might be valued as a unit for the purposes of taxa- 
 tion, taking into consideration the uses to which it was put and all 
 the elements making up aggregate value, and that a proportion of 
 the whole fairly and properly ascertained might be taxed by the par- 
 ticular State, without violating any Federal restriction. Western 
 Union Telegraph Co. v. Massachusetts, 125 U. S. 530; Massachusetts 
 v. Western Union Telegraph Co., 141 U. S. 40; Maine v. Grand 
 Trunk Railway, 142 U. S. 217 ; Pittsburgh; Cincinnati &c. Railway 
 v. Backus, 154 U. S. 421 ; Cleveland, Cincinnati &c. Railway v. 
 Backus, 154 U. S. 439; Western Union Telegraph Co. v. Taggart, 
 163 U. S. 1; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 
 18. The valuation was, thus, not confined to the wires, poles and 
 instruments of the telegraph company ; or the roadbed, ties, rails, and 
 spikes of the railroad company; or the cars of the sleeping car com- 
 pany ; but included the proportionate part of the value resulting from 
 the combination of the means by which the biisiness was carried on,
 
 ADAMS EX. CO. V. OHIO STATE AUDITOR. 397 
 
 a value existing to an appreciable extent throughout the entire domain 
 of operation. And it has been decided that a proper mode of ascer- 
 taining the assessable value of so much of the whole property as is 
 situate in a particular State, is in the case of railroads, to take that 
 part of the value of the entire road which is measured by the pro- 
 portion of its length therein to the length of the whole, Pittsburgh 
 &c. Railway \. Backus, 154 U. S. 421; or taking as the basis of 
 assessment such proportion of the capital stock of a sleeping car com- 
 pany as the number of miles of railroad over which the cars are run 
 in a particular State bears to the whole number of miles traversed 
 by them in that and other States, Pullmans Palace Car Co. v. Penn- 
 sylvania, 111 U. S. 18; or such a proportion of the whole value of 
 the capital stock of a telegraph company as the length of its lines 
 within a State bears to the length of all its lines every where, de- 
 ducting a sum equal to the value of its real estate and machinery 
 subject to local taxation within the State, Western Un. Tel. Co. v. 
 Taggart, 163 U. S. 1. 
 
 Doubtless there is a distinction between the property of railroad 
 and telegraph companies and that of express companies. The physi- 
 cal unity existing in the former is lacking in the latter; but there 
 is the same unity in the use of the entire property for the specific 
 purpose, and there are the same elements of value arising from such 
 use. 
 
 The cars of the Pullman Company did not constitute a physical 
 unity, and their value as separate cars did not bear a direct relation 
 to the valuation which was sustained in that case. The cars were 
 moved by railway carriers under contract, and the taxation of the 
 corporation in Pennsylvania was sustained on the theory that the 
 whole property of the company might be regarded as a unit plant, 
 with a unit value, a proportionate part of which value might be 
 reached by the state authorities on the basis indicated. 
 
 Xo more reason is perceived for limiting the valuation of the prop- 
 erty of express companies to horses, wagons and furniture, than that 
 of railroad, telegraph and sleeping car companies, to roadbeds, rails 
 and ties : poles and wires : or cars. The unit is a unit of use and man- 
 agement, and the horses, wagons, safes, pouches and furniture; the 
 contracts for transportation facilities; the capital necessary to earn' 
 on the business., whether represented in tangible or intangible prop- 
 erty, in Ohio, possessed a value in combination and from use in con- 
 nection with the property and capital elsewhere, which could as right- 
 fully be recognized in the assessment for taxation in the instance of 
 these companies as the others.
 
 398 LISTING OF PERSONS AND VALUATION. 
 
 We repeat that while the unity which exists may not be a physical 
 unity, it is something more than a mere unity of ownership. It is a 
 unity of use, not simply for the convenience or pecuniary profit of the 
 owner, but existing in the very necessities of the case resulting from 
 the very nature of the business. 
 
 The same party may own a manufacturing establishment in one 
 State and a store in another, and may make profit by operating the 
 two, but the work of each is separate. The value of the factory in 
 itself is not conditioned on that of the store or vice versa, nor is the 
 value of the goods manufactured and sold affected thereby. The 
 connection between the two is merely accidental and growing out of 
 the unity of ownership. But the property of an express company dis- 
 tributed through different States is as an essential condition of the 
 business united in a single specific use. It constitutes but a single 
 plant, made so by the very character and necessities of the business. 
 
 It is this which enabled the companies represented here to charge 
 and receive within the State of Ohio for the year ending May 1, 1895, 
 $282,181, $358,819 and $275,446, respectively, on the basis, accord- 
 ing to their respective returns, of $42,065, $28,438 and $23,430, of 
 personal property owned in that State, returns which confessedly 
 do not, however, take into account contracts for transportation and 
 accompanying facilities. 
 
 Considered as distinct subjects of taxation, a horse is, indeed, 
 a horse ; a wagon, a wagon ; a safe, a safe ; a pouch, a pouch ; but 
 how is it that $23,430 worth of horses, wagons, safes and pouches pro- 
 duces $275,446 in a single year? or $28,438 worth, $358,519? The 
 answer is obvious. 
 
 Reliance seems to be placed by counsel on the observation of Mr. 
 Justice Lamar, in Pacific Express Company v. Seibert, 142 U. S. 
 339, 354, that "express companies, such as are defined by this act, 
 have no tangible property, of any consequence, subject to taxation 
 under the general laws. There is, therefore, no way by which they can 
 be taxed at all unless by a tax upon their receipts for business tran- 
 sacted." But the reference was to the legislation of the State of 
 Missouri, and the scheme of taxation under consideration here was not 
 involved in any manner. 
 
 Assuming the proportion of capital employed in each of several 
 States through which such a company conducts its operations has 
 been fairly ascertained, while taxation thereon, or determined with 
 reference thereto, may be said in some sense to fall on the business 
 of the company, it is only indirectly. The taxation is essentially a
 
 ADAMS EX. CO. V. OHIO STATE AUDITOK. 399 
 
 property tax, and, as such, not an interference with interstate com- 
 merce. 
 
 Xor, in this view, is the assessment on property not within 
 the jurisdiction of the taxing authorities of the State and for that 
 reason amounting to a taking of property without due process of 
 law. The property taxed has its actual situs in the State and is, 
 therefore, subject to the jurisdiction, and the distribution among the 
 several counties is a matter of regulation by the State legislature. 
 Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 22; 
 State Railroad Tax Cases, 92 U. S. 575; Delaware Railroad Tax, 18 
 Wall. 206; Erie Railroad v. Pennsylvania, 21 Wall. 492; Columbus 
 Southern Railway v. Wright, 151 U. S. 470. 
 
 There is here no attempt to tax property having a situs outside of 
 the State, but only to place a just value on that within. Presump- 
 tively all the property of the corporation or company is held and used 
 for the purposes of its business, and the value of its capital stock and 
 bonds is the value of only that property so held and used. 
 
 Special circumstances might exist, as indicated in Pittsburgh, Cin- 
 cinnati &c. Railway v. Backus, 154 U. S. 421, 443, which would 
 require the value of a portion of the property of an express company 
 to be deducted from the value of its plant as expressed by the sum 
 total of its stock and bonds before any valuation by mileage could 
 be properly arrived at, but the difficulty in the cases at bar is that 
 there is no showing of any such separate and distinct property which 
 should be deducted, and its existence is not to be assumed. It is 
 for the companies to present any special circumstances which may 
 exist, and, failing their doing so, the presumption is that all their 
 property is directly devoted to their business, which being so, a fair 
 distribution of its aggregate value would be upon the mileage basis. 
 
 The States through which the companies operate ought not to be 
 compelled to content themselves with a valuation of separate pieces of 
 property disconnected from the plant as an entirety, to the propor- 
 tionate part of which they extend protection, and to the dividends 
 of whose owners their citizens contribute. 
 
 We are, also, unable to conclude that the classification of express 
 companies with railroad and telegraph companies as subject to the 
 unit rule, denies the equal protection of the laws. The provision in 
 the Fourteenth Amendment "was not intended to prevent a State 
 from adjusting its system of taxation in all proper and reason- 
 able ways," nor was that amendment "intended to compel a State
 
 400 LISTING OF PERSONS AND VALUATION- 
 
 to adopt an iron rule of equal taxation." Bell's Gap Railroad v. 
 Pennsylvania, 134 U. S. 232. 
 
 In Pacific Express Co. v. Seibert, 142 U. S. 339, 351, in which 
 a tax on gross receipts of express companies in the State of Missouri 
 was sustained, Mr. Justice Lamar, speaking for the court, well 
 says: 
 
 "This court has repeatedly laid down the doctrine that diver- 
 sity of taxation, both with respect to the amount imposed and the 
 various species of property selected either for bearing its burdens 
 or for being exempt from them is not inconsistent with a perfect 
 uniformity and equality of taxation in the proper sense of those 
 terms; and that a system which imposes the same tax upon every 
 species of property irrespective of its nature or condition or class will 
 be destructive of the principle of uniformity and equality in taxation 
 and of a just adaptation of property to its burdens." 
 
 And see Kentucky Railroad Tax Cases, 115 U. S. 321; Home 
 Insurance Co. v. New York, 134 U. S. 594. 
 
 The policy pursued in Ohio is to classify property for taxation, 
 when the nature of the property, or its use, or the nature of the 
 business engaged in, requires classification, in the judgment of the 
 legislature, in order to secure equality of burden; and property of 
 different sorts is classified under various statutory provisions for 
 the purposes of assessment and taxation. The state constitution 
 requires all property to be taxed by a uniform rule and according 
 to its true value in money, and it was held by the Supreme Court of 
 Ohio in State v. Jones that the Nichols law did not violate that 
 requirement. 
 
 In Wagoner v. Loomis, 37 Ohio St. 571, it was ruled that: 
 "Statutory provisions, whereby different classes of property are listed 
 and valued for taxation in and by different modes and agencies, are 
 not necessarily in conflict with the provisions of the constitution 
 which require all property to be taxed by a uniform rule and accord- 
 ing to its true value in money." And the court said : "A faithful 
 execution of the different provisions of the statutes would place upon 
 the duplicate for taxation all the taxable property of the State, 
 whether bank stocks or other personal property or real estate, accord- 
 ing to its true value in money; and the equality required by the 
 constitution has no other test." 
 
 The constitutional test was held to be complied with, whatever the 
 mode, if the result of the assessment was that the property was 
 assessed at its true value in money. 
 
 Considering, as we do, that the unit rule may be applied to
 
 GLOUCESTER FERRY CO. V. PENNSYLVANIA. 401 
 
 express companies without disregarding any other Federal restric- 
 tion, we think it necessarily follows that this law is not open to the 
 objection of denying the equal protection of the laws. 
 
 We have said nothing in relation to the contention that these 
 valuations were excessive. The method of appraisement prescribed 
 by the law was pursued and there were no specific charges of fraud. 
 The general rule is well settled that "whenever a question of fact is 
 thus submitted to the determination, of a special tribunal, its decis- 
 ion creates something more than a mere presumption of fact, and 
 if such determination comes into inquiry before the courts it cannot 
 be overthrown by evidence going only to show that the fact was 
 otherwise than as so found and determined/' Pittsburgh, Cincin- 
 nati &c. Railway v. Backus, 154 U. S. 434; Western Union Telegraph 
 Co. v. Taggart. 163 U. S. 1. 
 
 Decrees affirmed. 
 
 Mr. Justice WHITE, with whom concurred Mr. Justice FIELD, Mr. 
 Justice HARLAN and Mr. Justice BROWN, dissenting. 
 
 But the unit rule may not be so applied as to include property, such as 
 investment securities in which a surplus is invested, which is not used in the 
 business and is situated outside of the state. Fargo v. Hart, 194 U. S. 490. 
 
 GLOUCESTER FERRY CO. V. PENNSYLVANIA. 
 
 Supreme Court of the United States. October, 1884. 
 114 United States, 196. 
 
 In March, 1865, the Gloucester Ferry Company, the plaintiff in 
 error here, was incorporated by the legislature of New Jersey to 
 establish a steamboat ferry from the town of Gloucester, in that State, 
 to the city of Philadelphia, in Pennsylvania, with a capital stock of 
 $50.000, divided into shares of $50 each. During that year it estab- 
 lished, and has ever since maintained, a ferry between those places, 
 across the river Delaware, leasing or owning steam ferry-boats for 
 that purpose. At each place it has a slip or dock on which passen- 
 gers and freight are received and landed; the one in Gloucester it 
 owns, the one in Philadelphia it leases. Its entire business consists 
 in ferrying passengers and freight across the river between those 
 places. It has never transacted any other business. It does not own, 
 and has never owned, any property, real or personal, in the city of 
 26
 
 402 LISTING OF PERSONS AND VALUATION. 
 
 Philadelphia other than the lease of the slip or dock mentioned. All 
 its other property consists of certain real estate in the county of 
 Camden, New Jersey, needed for its business, and steamboats engaged 
 in ferriage. These boats are registered at the port of Camden, New 
 Jersey. It has never owned any boats registered at a port of Pennsyl- 
 vania, and its boats are never allowed to remain in that State except 
 so long as may be necessary to discharge and receive passengers and 
 freight. - 
 
 In July, 1880, the Auditor-General and the Treasurer of the 
 State of Pennsylvania stated an account against the Company of taxes 
 on its capital stock, based upon its appraised value, for the years 
 1865 to 1879, both inclusive, finding the amount of $2,593.96 to be 
 due the Commonwealth. From this finding an appeal was taken to 
 the Court of Common Pleas of Philadelphia, and was there heard 
 upon a case stated, in which it was stipulated that, if the court were 
 of the opinion that the company was liable for the tax, judgment 
 against it in favor of the Commonwealth should be entered for the 
 above amount; but if the court were of the opinion that the company 
 was not liable, judgment should be entered in its favor. 
 
 A statute of Pennsylvania, passed June 7, 1879, "to provide revenue 
 by taxation," in its fourth section enacted as follows: "That every 
 company or association whatever, now or hereafter incorporated by 
 or under any laws of this Commonwealth, or now or hereafter incor- 
 porated by any other State or Territory of the United States or 
 foreign government, and doing business in this Commonwealth, or 
 having capital employed in this Commonwealth in the name of any 
 other company or corporation, association or associations, person or 
 persons, or in any other manner, except foreign insurance companies, 
 banks and savings institutions, shall be subject to and pay into 
 the treasury of the Commonwealth annually a tax to be computed as 
 follows, namely: If the dividend or dividends made or declared by 
 such company or association as aforesaid, during any year ending 
 with the first Monday of November, amount to six or more than six 
 per centum upon the par value of its capital stock, then the tax to be 
 at the rate of one-half mill upon the capital stock for each one per 
 centum of the dividend so made or declared ; if no dividend be made 
 or declared, or if the dividend or dividends made or declared do not 
 amount to six per centum upon the par value of said capital stock, 
 then the tax to be at the rate of three mills upon each dollar of a 
 valuation of the said capital stock," made in accordance with the 
 provision of another section of the act. 
 
 It was under the authority of this act that the taxes in question
 
 GLOUCESTER FERRY CO. V. PENNSYLVANIA. 403 
 
 were stated against the company by the Auditor-General and the State 
 Treasurer. 
 
 The Court of Common Pleas held that the taxes could not be law- 
 fully levied, for there was no other business carried on by the company 
 in Pennsylvania except the landing and receiving of passengers and 
 freight, which is a part of the commerce of the country, and pro- 
 tected by the Constitution from the imposition of burdens by State 
 legislation. It, therefore, gave judgment in favor of the Company. 
 The case being carried on a writ of error to the Supreme Court of 
 the State, the judgment was reversed and judgment ordered in favor 
 of the Commonwealth for the amount mentioned. To review this 
 latter judgment, the case was brought here. 
 
 Mr. Justice FIELD delivered the opinion of the court. He stated 
 the facts as above recited, and continued: 
 
 The Supreme Court of the State, in giving its decision in this 
 case, stated that the single question presented for consideration was 
 whether the company did business within the State of Pennsylvania 
 during the period for which the taxes were imposed; and it held 
 that it did do business there because it landed and received passen- 
 gers and freight at its wharf in Philadelphia, observing that its 
 whole income was derived from the transportation of freight and 
 passengers from its wharf at Gloucester to its wharf at Philadelphia, 
 and from its wharf at Philadelphia to its wharf at Gloucester; 
 that at each of these points its main business, namely, the receipt and 
 landing of freight and passengers, was transacted; that for such 
 business it was dependent as much upon the one place as upon the 
 other; that, as it could hold the wharf at Gloucester, which it owned 
 in fee, only by purchase by virtue of the statutory will of the Legisla- 
 ture of New Jersey ; so it could hold by lease the one in Philadelphia 
 only by the implied consent of the Legislature of the Commonwealth ; 
 r.nd that, therefore, it "was dependent equally, not only for its 
 business, but its power to do that business, upon both States, and 
 might therefore be taxed by both." 98 Penn. St. 105, 116. 
 
 As to the first reason thus expressed, it may be answered that the 
 business of landing and receiving passengers and freight at the wharf 
 in Philadelphia is a necessary incident to, indeed is a part of, their 
 transportation across the Delaware River from New Jersey. Without 
 it that transportation would be impossible. Transportation implies 
 the taking up of persons or property at some point and putting them 
 down at another. A tax, therefore, upon such receiving and landing 
 of passengers and freight is a tax upon their transportation; that 
 '-. upon the commerce between the two States involved in such 
 transportation.
 
 404 LISTING OF PERSONS AND VALUATION. 
 
 It matters not that the transportation is made in ferry-boats, 
 which pass between the States every hour of the day. 
 
 As to the second reason given for the decision below, that the 
 company could not lease its wharf in Philadelphia except by the 
 implied consent of the Legislature of the Commonwealth, and thus 
 is dependent upon the Commonwealth to do its business, and therefore 
 can be taxed there, it may be answered that no foreign or inter- 
 State commerce can be carried on with the citizens of a State 
 without the use of a wharf, or other place within its limits on 
 which passengers and freight can be landed and received, and the 
 existence of a power in a State to impose a tax upon the capital of 
 all corporations engaged in foreign or inter-State commerce for the 
 use of such places would be inconsistent with and entirely subversive 
 of the power vested in Congress over such commerce. Nearly all the 
 lines of steamships and of sailing vessels between the United States 
 and England, France, Germany and other countries of Europe, and 
 between the United States and South America, are owned by corpo- 
 rations; and if by reason of landing or receiving passengers and 
 freight at wharves, or other places in a State, they can be taxed 
 by the State on their capital stock on the ground that they are doing 
 business within her limits, the taxes which may be imposed may 
 embarrass, impede, and even destroy such commerce with the citi- 
 zens of the State. If such a tax can be levied at all, its amount will 
 rest in the discretion of the State. It is idle to say that the interests 
 of the State would prevent oppressive taxation. Those engaged in 
 foreign and inter-State commerce are not bound to trust to its 
 moderation in that respect; they require security. And they may 
 rely on the power of Congress to prevent any interference by the 
 State until the act of commerce, the transportation of passengers and 
 freight, is completed. 
 
 It is true that the property of corporations engaged in foreign 
 or inter-State commerce, as well as the property of corporations 
 engaged in other business, is subject to State taxation, provided 
 always it be within the jurisdiction of the State. As said by Chief 
 Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 429, "all 
 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. Thie proposition 
 may almost be pronounced self-evident." 
 
 In Hays v. Pacific Mail Steamship Co. 17 How. 596, the defendant,
 
 GLOUCESTER FERRY CO. V. PENNSYLVANIA. 405 
 
 a corporation of New York, owned ^team vessels employed in the 
 transportation of passengers and freight between New York and 
 San Francisco, and between New York and different ports in Oregon, 
 which were registered in New York. ... It was held that 
 the vessels were not subject to taxation in California, as they were 
 only temporarily there while engaged in lawful trade and commerce. 
 
 In Morgan v. Parham, 16 Wall. 471, it was held that a vessel regis- 
 tered in New York was not subject to taxation in Alabama, though 
 engaged in commerce as one of a regular line of steamers between 
 Mobile in that State and New Orleans in Louisiana. 
 
 In St. Louis v. The Ferry Co. 11 Wall, 423, the company was 
 incorporated by Illinois to run a ferry from a place opposite St. 
 Louis to that city across the Mississippi. 
 
 . . . It paid a ferry license to St. Louis and a wharfage tax 
 for the use of its wharf there. In addition to these charges the 
 city authorities assessed a tax on the company for the value of the 
 boats as property within the city, all property within it being tax- 
 able under a statute of the State. The court held that the tax 
 was illegally levied, a the boats were not property within the city. 
 
 In the recent case of Commonu-ealth of Pennsylvania v. Standard 
 Oil Co. 101 Penn. St. 119, the liability of foreign corporations doing 
 business within that State is elaborately considered by its Supreme 
 Court. 
 
 In giving its decision the court said that it had been repeatedly 
 decided and was settled law that a tax upon the capital stock of a 
 company is a tax upon its property and assets (citing to that effect 
 a large number of decisions) ; that it was undoubtedly compecei t for 
 the legislature to lay a franchise or license tax upon foreign corpo- 
 rations for the privilege of doing business within the State, but 
 that the tax in that case was in no sense a license tax ; that the State 
 had never granted a license to the Standard Oil Company to do 
 business there, but merely taxed its property, that is, its capital 
 stock, to the extont that it brought <uch property within its borders 
 in the transaction of its business; that the position of the Common- 
 wealth, that a foreign corporation entering the State to do business 
 brought its entire capital, .was ingenious, but unsound : that it was 
 a fundamental principle that, in order to be taxed, the person must
 
 406 LISTING OF PERSONS AND VALUATION. 
 
 have a domicil within the State, and the thing must have a situs 
 therein; that persons and property in transitu could not be taxed; 
 that the domicil of a corporation was in the State of its origin, and 
 it could not emigrate to another sovereignty; that the domicil of the 
 Standard Oil Company was in Ohio, and when it sent its agents into 
 the State to transact business it no more entered the State in point of 
 fact that any other foreign corporation, firm, or individual who sent 
 an agent there to open an office or branch house, nor brought its 
 capital there constructively; that it would be as unreasonable to 
 assume that a business firm in Ohio brought its entire capital there 
 because it sent its agent to establish a branch of its business, as to 
 hold that the Standard Oil Company, by employing certain persons 
 in the State to transact a portion of its business, thereby brought 
 all its property or capital stock within the jurisdiction of the State, 
 that there was neither reason nor authority for such a proposition; 
 that the company was taxable only to the extent that it brought its 
 property within the State; and that its capital stock, as mentioned 
 in the act of the legislature, must be construed to mean so much of 
 the capital stock as was measured by the property actually brought 
 within the State by the company in the transaction of its business. 
 The justice who delivered the opinion of the court added, speaking 
 for himself, that he conceded the power of the Commonwealth to 
 exclude foreign corporations altogether frjom her borders, or to 
 impose a license tax so heavy as to amount to the same thing; but he 
 denied, great and searching as her taxing power is, that she could 
 tax either persons or property not within her jurisdiction. "A foreign 
 corporation," he said, "has no domicil here, and can have none ; hence 
 it cannot be said to draw to itself the constructive possession of its 
 property located elsewhere. There are a large number of foreign 
 insurance companies doing business here under a license from the 
 State. Some of them have a very large capital. It is usually invested 
 at the domicil of the company. If the position of the Commonwealth 
 is correct, she can tax the entire property of the Royal Insurance 
 Company, although the same is located almost wholly in England, or 
 the assets of the New York Mutual, located in New York." 
 
 Under this decision there is no property held by the Gloucester 
 Ferry Company which can be the subject of taxation in Pennsylvania, 
 except the lease of the wharf in that State. Whether that wharf 
 is taxed to the owner or the lessee it matters not, for no question hero 
 is involved in such taxation. It is admitted that it could be taxed 
 by the State according to its appraised value. The ferry-boat? of 
 the company are registered at the port of Camden in New Jersey, and
 
 GLOUCESTER FERRY CO. V. PENNSYLVANIA. 4iT, 
 
 according to the decisions in Hays v. The Pacific Mail Steamship 
 Co., and in Morgan v. Parham, they can be taxed only at their home 
 port. According to the decision in the Standard Oil Company case, 
 and by the general law on the subject, the company has no domicil 
 in Pennsylvania, and its capital stock representing its property is 
 hold outside of its limits. It is solely, therefore, for the business of 
 the company in landing and receiving passengers at the wharf in 
 Philadelphia that the tax is laid, and that business, as already said, is 
 an essential part of the transportation between the States of Xew 
 Jersey and Pennsylvania, which is itself inter-State commerce. While 
 it is conceded that the property in a State belonging to a foreign 
 corporation engaged in foreign or inter-State commerce may be 
 taxed equally with like property of a domestic corporation engaged 
 in that business, we are clear that a tax or other burden imposed on 
 the property of either corporation because it is used to carry on 
 that commerce, or upon the transportation of persons or property, 
 or for the navigation of the public waters over which the transporta- 
 tion is made, is invalid and void as an interference with, and an 
 obstruction of, tiie power of Congress in the regulation of such 
 commerce. This proposition is supported by many adjudications. 
 
 In Steamship Co. v. Port Wardens, 6 Wall. 31, it was held that 
 a statute of Louisiana, declaring that the master and wardens of 
 the port of Xew Orleans should be entitled to demand and receive 
 in addition to other fees, the sum of five dollars for every vessel 
 arriving at that port, whether called on to perform any service or 
 not, was unconstitutional and void, as imposing a burden upon com- 
 merce, both inter- State and foreign. 
 
 In Reading Railroad Company v. Pennsylvania, sometimes called 
 the case of the State Freight Tax, 15 Wall. 232, it was held that the 
 act of the Legislature of Pennsylvania requiring railroad companies 
 to pay the State Treasurer, for the use of the Commonwealth, a tax 
 on each two thousand pounds of freight carried, was unconstitutional 
 and void, so far as it affected commodities transported through the 
 State, or from points without the State to points within the State, or 
 from points within the State to points without it, as being a regulation 
 of inter-State commerce. 
 
 In Henderson v. The Mayor of New York, 92 IT. S. 259, an act 
 of the State of Xew York requiring the owner or consignee of a 
 vessel arriving at the port of Xew York to give a bond for every
 
 408 LISTING OF PERSONS AND VALUATION. 
 
 passenger in a penalty of $300, with two sureties, each a resident 
 and freeholder conditioned to indemnify the Commissioners of 
 Emigration, and every county, city and town in the State, against 
 any expanse for the relief or support of the person named in the 
 bond, for four years thereafter, but allowing in commutation of the 
 bond a payment of one dollar and a half for each passenger within 
 twenty-four hours after his landing, and imposing a penalty of 
 $500 for each passenger if such payment were not made within that 
 time, the penalty to be a lien on the vessel, was held to be unconsti- 
 tutional and void. 
 
 These cases would seem to be decisive of the character of the busi- 
 ness which is the subject of taxation in the present case, deceiving 
 and landing passengers and freight is incident to their transporta- 
 tion. Without both there could be no such thing as their transporta- 
 tion across the river Delaware. The transportation, as to passen- 
 gers, is not completed until, as said in the Henderson case, they are 
 disembarked at the pier of the city to which they are carried; and, 
 as to freight, until it is landed upon such pier. And all restraints 
 by exactions in the form of taxes upon such transportation, or upon 
 acts necessary to its completion, are so many invasions of the exclusive 
 power of Congress to regulate that portion of commerce between the 
 States. 
 
 The cases where a tax or toll upon vessels is allowed to meet the 
 expenses incurred in improving the navigation of waters traversed by 
 them, as by the removal of rocks, the construction of dams and 
 locks to increase the depth of the water and thus extend the line of 
 navigation, or the construction of canals around falls, rest upon a 
 different principle. The tai in such cases is considered merely as 
 compensation for the additional facilities thus provided in the navi- 
 gation of the waters. Kellogg v. Union Co. 12 Conn. 7 ; Thames Bank 
 v. Lowell, 18 Conn. 500 ; McReynolds v. Smallhouse, 8 Bush, 447. 
 
 Upon similar grounds, what are termed harbor dues or port charges, 
 exacted by the State from vessels in its harbors, or from their owners, 
 for other than sanitary purposes, are sustained. 
 
 It is true that, from the earliest period in the history of the gov- 
 ernment, the States have authorized and regulated ferries, not only 
 over waters entirely within their limits, but over waters separating 
 them; and it may be conceded that in many respects the States can 
 more advantageously manage such inter-State ferries than the gen-
 
 GLOUCESTEK FERRY CO. V. PENNSYLVANIA. 409 
 
 oral government; and that the privilege of keeping a ferry, with a 
 right to take toll for passengers and freight, is a franchise grantable 
 by the State, to be exercised within such limits and under such 
 regulations as may be required for the safety, comfort and convenience 
 of the public. Still the fact remains that such a ferry is a means, and 
 a necessary means, of commercial intercourse between the States 
 bordering on their dividing waters, and it must, therefore, be con- 
 ducted without the imposition by the States of taxes or other burdens 
 upon the commerce between them. Freedom from such impositions 
 does not, of course, imply exemption from reasonable charges, as 
 compensation for the carriage of persons, in the way of tolls or fares, 
 or from the ordinary taxation to which other property is subjected, 
 any more than like freedom of transportation on land implies such 
 exemption. Reasonable charges for the use of property, either on 
 water or land, are not an interference with the freedom of transporta- 
 tion between the States secured under the commercial power of Con- 
 gress. Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. St. Louis, 
 100 U. S. 423; Viclcsburg v. Tobin, 100 U. S. 430; Packet Co. v. 
 Catlettsburg, 105 U. S. 559; Transportation Co. v. Parlcersburg, 107 
 U. S. 691. 
 
 That freedom implies exemption from charges other than such as 
 are imposed by way of compensation for the use of the property 
 employed, or for facilities afforded for its use, or as ordinary taxes 
 upon the value of the property. How conflicting legislation of the 
 two States on the subject of ferries on waters dividing them is to 
 be met and treated is not a question before us for consideration. 
 Pennsylvania has never attempted to exercise its power of establish- 
 ing and regulating ferries across the Delaware River. Any one, so 
 far as her laws are concerned, is free, as we are informed, to establish 
 such ferries as he may choose. No license fee is exacted from ferry- 
 keepers. She merely exercises the right to designate the places of 
 landing, as she does the places of landing for all vessels engaged in 
 commerce. The question, therefore, respecting the tax in the present 
 case is not complicated by any action of that State concerning ferries. 
 However great her power, no legislation on her part can impose a tax 
 on that portion of interstate commerce which is involved in the trans- 
 portation of persons and freight, whatever be the instrumentality by 
 which it is carried on. 
 
 It follows that upon the case stated the tax imposed upon the ferry 
 company was illegal and void. 
 
 The judgment of the Supreme Court of the State of Pennsylvania
 
 410 LISTING OF PERSONS AND VALUATION. 
 
 must, therefore, be reversed and. the case remanded for further pro- 
 ceedings in conformity with this opinion. 
 
 Other cases in this collection on the situs of personal property are St. 
 Louis v. The Ferry Co., 11 Wallace (U. S.) 423; Savings etc., Society v. 
 Multnomah Co., 169 U. S. 421; New Orleans v. Stempel, 175 U. S. 309; 
 Kirtland v. Hotchkiss, 100 U. S. 491 ; Matter of Swift, 137 N. Y. 77 ; State v. 
 Dalrymple, 70 Md. 294, supra. 
 
 V. TAXATION OF CORPORATE STOCK. 
 BELO V. COMMISSIONERS. 
 
 Supreme Court of North Carolina. January, 1880. 
 82 North Carolina 415. 
 
 SMITH, C. J. The plaintiff is the owner of three hundred and 
 forty-five shares of the capital stock of the North Carolina railroad 
 company, which have been assessed and charged with an ad valorem 
 tax in the manner prescribed by law, and the tax list has been 
 made out and delivered to the defendant, Hill, the sheriff of For- 
 syth, for collection. This suit is instituted to restrain him and the 
 county commissioners from levying and collecting the tax, on the- 
 ground of alleged exemption under the charter of the company, and 
 for the further reason that all proper taxes upon the taxable prop- 
 erty of the company are paid by the company. 
 
 The only question then for us to consider is this: As all the 
 property of the company, real and personal, is either given in for 
 taxation* and the taxes thereon paid by the company, or is exempt 
 under the act, can the shares in the hands of the stockholders be 
 also assessed and charged as an independent subject of taxation? 
 The question is scarcely open to debate, and we shall only refer to 
 some among the many authorities sustaining the affirmative of the 
 proposition. 
 
 In Gordon v. The Appeal Tax Court, 3 How. (U. S.) 133, Mr. 
 Justice Wayne thus expresses himself: "The franchise is their cor- 
 porate property, which like any other property, would be taxable, 
 if a price had not been paid for it. The capital stock is another 
 property, corporately associated for the purpose of banking, but in 
 its parts, is the individual property of the stockholders, in the pro- 
 portion- they may own them; and being their individual property,
 
 BELO V. COMMISSIONERS. 411 
 
 they may be taxed for it as they may for any other property they 
 
 may own A franchise for banking is, in every state 
 
 in the Union, recognized as property. The banking capital attached 
 to the franchise is another property, owned in its parts by persons, 
 corporate or natural, for which they are liable to be taxed, as they 
 are for all other property, for the support of government." 
 
 In an able opinion of the author of that valuable work on rail- 
 ways, commenting on the law, he says: "We here find the clear 
 recognition of this kind of corporate property, taxable to the cor- 
 poration, and the shares in the hands of the corporators, distinctly 
 defined as a fourth species of corporate property, taxable only to 
 the owners or holders. 1. The capital stock; 2. The corporate 
 property; 3. The franchise of the corporation, all of which is tax- 
 able to the corporation; and the shares in the capital stock which 
 are taxable only to the shareholders." 1 Red. Am. R. Cases, 497. 
 
 A tax on the shares of stockholders in a corporation is a different 
 thing from a tax on the corporation itself, or its stock, and may be 
 laid irrespective of any taxation of the corporation where no con- 
 tract relations forbid it. Cooley Const. Lim., 169. Field on Corp., 
 521. 
 
 A share of stock in a corporation is personal estate and is taxable 
 to the owner thereof, as other personal estate, at the place of his 
 residence. Burroughs Taxation, 90. 
 
 Stock in a corporation is in the nature of a chose in action. It 
 has no locality and of necessity follows the person of the owner. 
 The tax upon it is in the nature of a tax upon income which of 
 necessity is confined to the person of the owner. 1 Potter's Law 
 Corp., 192. 
 
 In Massachusetts it has been decided under a statute of that state 
 that a citizen may be taxed for his stock in a turnpike company in 
 another state. Great Barrington v. Com'rs of Berkshire, 16 Pick., 
 572. 
 
 In Van Allen v. Assessors, 3 Wall., 573, it is held that shares in 
 a National bank may be taxed to the holder, although the whole cap- 
 ital is invested in securities of the national government, which an 
 act of congress declares to be exempt from taxation by state au- 
 thority. 
 
 These references are sufficient to show that shares of stock in an 
 incorporated company may be taxed as a distinct species of prop- 
 erty, belonging to the holder, independently of the taxation imposed 
 upon the value of the franchise and upon ihe real and personal 
 estate of the corporation itself.
 
 412 LISTING OF PEHSONS AND VALUATION. 
 
 Has the legislature exercised its power to tax the plaintiff's stock 
 upon its assessed value, and thus secured the uniformity prescribed 
 in the constitution? 
 
 The taxes covered by the restraining order were levied in 1878 
 under the requirements of the act of March 7th, 1877, section 9 of 
 which prescribes what the tax lists shall contain, and in paragraph 
 6, enumerates the following: "Stock, in national, state and pri- 
 vate banks, and stocks in any incorporated company or joint stock 
 association, railroad or canal company, and their estimated value;'' 
 and this valuation is charged in the act of raising revenue with the 
 ad valorem tax levied, and uniform on property. The stock must be 
 listed in the county and township of the owner's residence, where 
 he resides in the state, as was decided upon the construction of the 
 statute in Buie v. Com'rs of Fayetteville, 79 N. C., 267. 
 
 There is nothing unreasonable in the subjection of this form of 
 property to its share of the common burden of taxation, necessary 
 in the support of government. Income is or may be taxed, unless 
 in the special case forbidden in the constitution, from whatever 
 source derived. Dividends are but net profits distributed among the 
 shareholders, and if they must be taxed, why cannot the stock be 
 taxed from which they proceed? 
 
 The subject may be considered in another aspect. The relation 
 of the stockholders to the corporate body, for the purposes of the 
 present enquiry, is very analogous to that of a creditor towards his 
 debtor. The means and resources of the debtor, in connection with 
 the skill, industry and integrity, impart value to his personal obliga- 
 tion, as property possessed by the creditor. It is not pretended that 
 the assessment and taxation of the estate of the former where he 
 may reside, or his estate may be found, should relieve the security, 
 which the latter holds, from liability for its share of the common 
 burden. The same principle, and with equal force, may be applied 
 to the stockholder and the corporation. The latter must bear the 
 taxation imposed upon its property, and this may diminish its dis- 
 tributable profits, but the stockholder cannot, any more than the 
 creditor, claim exemption on this account, for his stock, as distinct 
 and separate property in his own hands. 
 
 It must therefore be declared that there is error in the record 
 and the judgment must be reversed, and judgment entered here that 
 the defendants go without day and recover their costs, and it is so 
 ordered. 
 
 Error. 
 
 Keversed.
 
 DYER V. OSBORNE. 413 
 
 DYER V. OSBORNE. 
 
 Supreme Cowt of Rhode Island. March, 1876. 
 11 Rhode Island, 321. 
 
 DURFEE, C. J. This is an action on the case to recover a tax of 
 $280.00 assessed on the defendant in the Town of Tiverton in the 
 year 1874. The defendant pleads in bar of the action, that in com- 
 pliance with a notice given by the assessors as prescribed by the 
 statute, Gen. Stat. R. I. chap. 40, 6, he rendered an account on 
 oath as required by 7 of that chapter, and his tax was duly as- 
 sessed by the assessors upon the ratable property and estate in said 
 account mentioned, and was by him promptly paid to the collector 
 of taxes; and he further avers and pleads, "the taxes in the plain- 
 tiff's declaration mentioned were assessed upon other property of 
 the defendant, to wit: upon forty shares of the capital stock or 
 corporate property of certain manufacturing corporations, organized 
 under the laws of the Commonwealth of Massachusetts, and located 
 with their said property in the city of Fall River, in the said com- 
 monwealth, which said shares were of the par value of $40,000; all 
 of which said capital stock of said corporations was then invested* 
 in lands, factory buildings, tenement houses, permanent and mov- 
 able machinery and stock in process, all located and established in 
 Fall River aforesaid, and said shares in the said corporate property 
 were all taxed to this defendant in said Fall River at their fair 
 market value, and which said tax in said Fall River he duly paid; 
 and this defendant avers that the tax in the said plaintiff's declara- 
 tion mentioned was assessed on the said shares in the said corpo- 
 rate property, and not upon other and different property or estate 
 of the defendant, and that the said property was not ratable in the 
 said town of Tiverton, and that the said tax mentioned in the plain- 
 tiff's declaration and assessed thereon, was and is illegal and void," 
 etc. To this plea the plaintiff demurs. 
 
 The declaration describes the defendant as "of Tiverton," and for 
 anything that appears in the plea, he was a citizen or inhabitant of 
 the state, having his domicil in that town. The question, therefore, 
 which is presented by the pleading is, whether a citizen or inhab- 
 itant of the state is liable to pay a tax assessed against him in "the 
 town of his domicil upon shares of stock which he owns in a man- 
 ufacturing corporation of another state, he having been taxed and 
 paid the tax on the same shares in such other state. 
 
 The question arises under chapters 38 and 39 of the General Stat-
 
 414 LISTING OF PERSONS AND VALUATION. 
 
 utes. The first section of chapter 38 declares that "all real property 
 in the State, and all personal property belonging to the inhabitants 
 thereof, shall be liable to taxation, unless otherwise specially pro- 
 vided." Section 10 of chapter 39 declares that "personal property, 
 for the purposes of taxation, shall be deemed to include all goods, 
 chattels, debts due from solvent persons, moneys, and effects, wher- 
 ever they may be; all ships or vessels at home or abroad; all pub- 
 lic stocks and securities, except those issued by the government of 
 the United States; all stocks or shares in any bank or banking as- 
 sociation; in any turnpike, bridge or other corporation within or 
 without the state, except such as are exempted from taxation by the 
 laws of the state." 
 
 The language is plain. It clearly makes the shares of any cor- 
 poration, whether manufacturing or other, whether without or 
 within the state, liable to taxation, if the owner is an inhabitant of 
 the state, unless such shares are exempted from taxation by the laws 
 of the state. At the time the tax now sued for was assessed, shares 
 in the stock of a manufacturing corporation of another state were 
 not exempted from taxation by the laws of this state. Upon what 
 ground, then, can we hold that the assessment of the tax was illegal 
 and void? 
 
 The defendant says the practice of assessors in regard to the tax- 
 ation of such shares has varied, and that in a majority of the 
 towns such shares have not been taxed to their owners living in this 
 state. A practice under a statute, which has been uniform and 
 long continued, is entitled to weight in construing a statute, if the 
 construction is open to serious doubt. The practice here invoked 
 has not been uniform, and we do not think there can be any serious 
 doubt of the true construction of the statute. 
 
 The defendant contends that the assessment, even if within the 
 statute, was illegal and void. He does not point to any specific pro- 
 vision of the Constitution of either the state or the United States 
 which is infringed by the assessment, or by the statute which au- 
 thorized it; but he plants himself upon the broad ground that the 
 assessment of such a tax is not the exercise of a legitimate power of* 
 the state. He has cited numerous cases which he contends support 
 this position. 
 
 The doctrine of these cases appears to be that personal property 
 which is visible and tangible, and which therefore can have a situs 
 independent of its owner, may for certain purposes, and especially 
 for taxation, be localized, PO to speak, and subjected directly to the
 
 DYEE V. OSBORNE. 415 
 
 law of the state where it is situated; but that if it be a mere debt 
 or pecuniary obligation, it is incapable of having a situs apart from 
 its owner, and therefore can only be taxed to its owner in the state 
 where he resides. We do not find anything in either of the cases 
 which is to the effect that the shareholders of a corporation can 
 only be taxed in the state where the corporation is situated. 
 
 The case of Trow'bridge v. Com. of Taxes, 11 N. Y. Supreme Ct. 
 595, is more nearly in point. It was held in that case that the 
 shares of a foreign corporation, owned in New York, were not prop- 
 erty within that state, under the tax law of that state, but simply 
 representatives of capital or property invested in the business of 
 the corporation in the state where it was situated. The case seems 
 to hold that the property of the shareholders is not distinguishable 
 from the property of the corporation, and therefore cannot have a 
 separate situs or locality. This may be so within the meaning of 
 the tax law of New York, but ordinarily the property of sharehold- 
 ers is distinguishable from that of the corporation; for whereas the 
 shares are and must be personal estate of the nature of choses in ac- 
 tion, the property of the corporation may be real estate or visible and 
 tangible chattels or effects. Angell & Ames on Corp. (7th ed.), 
 560, 561 and cases cited; Arnold v. Buggies, 1 E. I. 167-9. 
 
 There are cases which expressly hold that an owner of shares in 
 the stock of a foreign corporation is liable to taxation for such 
 shares in the state where he resides. In Great Harrington v. County 
 Commissioners of Berkshire, 16 Pick. 572, under a statute subject- 
 ing to taxation "shares or property in any incorporated company for 
 a bridge or a turnpike road," it was held that a citizen of Massa- 
 chusetts was liable to be taxed in that state for his stock in a New 
 York turnpike corporation, notwithstanding the fact that under the 
 law of New York the corporation held the soil of the road in fee. 
 "No exception," said the court, "is made of companies in other 
 states, and the court perceive no reason for raising any by impli- 
 cation." 
 
 In McKeen v. The County of Northampton, 49 Pa. St. 519, a 
 person residing in Pennsylvania and owning 472 shares of stock in 
 a manufacturing corporation of New Jersey, the capital of which 
 was invested in a foundry, machine-shop, and other real estate in 
 New Jersey, and taxed under the laws of that state, was held liable 
 to taxation for his shares in Pennsylvania for state and county pur- 
 poses. The court say: "The defendant below, being a citizen of 
 this state, it is clear he is subject personally to its power to tax, 
 and that all his property accompanying his person, or falling legiti-
 
 416 LISTING OF PERSONS AND VALUATION. 
 
 mately within the territorial jurisdiction of the state, is equally 
 within its authority. The interest which an owner of shares has in 
 the stock of a corporation is personal ; whithersoever he goes it ac- 
 companies him, and when he dies his domicil governs its succes- 
 sion/' The court also adverts to the fact that the tax is not as- 
 sessed upon the shares specifically, but upon the person of their 
 owner, the shares being merely a measure of taxation, and is en- 
 forced by warrant against the owner personally or against any prop- 
 erty he has whether taxed or not. See also Whitesell v. The County 
 of Northampton, 49 Pa. St. 526. 
 
 It has been held that shares in the stock of a corporation are tax- 
 able as such to their owner, though the corporation is itself exempt 
 from taxation by charter; Union Bank v. The State, 9 Yerg. 490; 
 or though the capital of the corporation is invested wholly or in 
 part in United States bonds, which cannot themselves be taxed. 
 National Bank v. Commonwealth, 9 Wall. 353; St. Louis Building 
 & Savings Association v. Lightner, 47 Mo. 393. In Union Bank 
 v. The State, 9 Yerg. 490, the doctrine of the court was that such 
 a tax must be, from its very nature, a tax in personam and not in 
 rem. "Bank stock/' says the court, "is not a thing in itself capable 
 of being taxed on account of its locality, and any tax imposed upon 
 it must be in the nature of a tax upon income, and of necessity con- 
 fined to the person of the owner, and if he be a non-resident, he i- 
 beyond the jurisdiction of the state and not subject to her laws." 
 
 These cases are to the effect, that shares in the stock of a corpora- 
 tion are in the nature of choses in action, incorporeal, and have no 
 situs independently of their owner; and that, consequently, the 
 state has jurisdiction over them to tax them by having jurisdiction 
 over their owner, the tax being in fact a tax upon the owner on 
 account of his ownership, rather than upon the shares themselves. 
 In the light of these cases, we think the defendant's claim, that the 
 tax sued for could not be legally assessed for want of jurisdiction, 
 cannot be sustained. 
 
 The plea avers that the defendant has already paid a tax assessed 
 upon the shares in Massachusetts., It is doubtless a hardship for 
 him to pay taxes on the same property in two states. But the Mas- 
 sachusetts tax, even if valid, could not divest this state of its juris- 
 diction. The laws of Rhode Island are paramount in Rhode Island, 
 and all the inhabitants of the state are subject to them without re- 
 gard to the laws of any other state. If there be any ground upon 
 which the defendant is entitled to exoneration because of the Mas- 
 sachusetts tax, it is that clause of our Constitution, which declares
 
 STATE V. BEANIN. 417 
 
 that "the burdens of the state ought to be fairly distributed among 
 its citizens," and upon the claim that it is unfair to tax him in 
 Ehode Island for property on which he has paid a tax in Massa- 
 chusetts. We do not think, however, that the tax ought to be de- 
 clared void under that clause of the Constitution. It would cer- 
 tainly be going too far to hold that a man of wealth, living in 
 Ehode Island, cannot be taxed at all in Ehode Island, if his prop- 
 erty is all invested in the stocks of a manufacturing corporation of 
 another state, and there subject to taxation. And if such a man can 
 be taxed at all in Ehode Island, the question of how much, is, 
 within reasonable limits at least, a legislative, not a judicial ques- 
 tion. 
 
 The defendant's plea will be overruled, and judgment entered for 
 the plaintiff for the amount of the tax with interest. 
 
 Demurrer sustained. 
 
 There is no objection from the point of view of the United States consti- 
 tution to taxing, in the hands of shareholders, shares of foreign corporations 
 whose property is taxable in another state, Sturges v. Carter 114 U. S. 511. 
 This is not the rule in New York. People ex rel. Trowbridge v. Corns. 4 Hun 
 559, affirmed in 62 N. Y. 630; People ex rel. Brown v. O'Roorke, 31 App. Div. 
 583-588. 
 
 STATE V. BEANIN. 
 
 Supreme Court of New Jersey. November, 1852. 
 3 Zabriskie 484. 
 
 The CHIEF JUSTICE. 
 
 The third exception to the assessment is, that the prosecutor was 
 assessed for stocks held by him in incorporated banks within this 
 state. The ground of this objection is, that the entire capital stock 
 of the banks is subjected to a tax of the one-half of one per cent., 
 and that to subject the same property to a tax in the hands of the 
 stockholders would be in effect double taxation. 
 
 Admitting that the taxation be double, and therefore unequal and 
 unjust, the power of the court to interfere and declare it illegal, 
 except in cases where it is also in violation of some provision of the 
 constitution, does not seem to be clear. 
 
 The authorities are against the exercise of the power, except where 
 
 it contravenes some constitutional provision. The legislature, from 
 27
 
 418 LISTING OF PERSONS AND VALUATION. 
 
 some cause, have applied a rule of taxation to banks different from 
 that applied to other corporations. In all other cases where the 
 stock in the hands of the stockholder is taxed, the property of the 
 corporation is exempted. This taxation may, in its operation upon 
 the stockholders in the hanks, be unequal, oppressive, and unjust; 
 but, if so, the remedy is not with this court. "The interest, wisdom, 
 and justice of the legislature, and its relations with its constituents, 
 furnish the only security where there is no express contract against 
 unjust and excessive taxation, as well as against unwise legislation 
 generally." Providence Bank v. Billings, 4 Peters 563 ; McCullough 
 v. Tlie State of Maryland, 4 Wheat. 316; Salem Iron Factory v. 
 Danvers, 10 Mass. 518; Smith v. Burley, 9 New Hamp. 423. 
 
 The taxation of both corporation and shareholder may however be uncon- 
 stitutional under some particular state contsitutional provision as e. g. one 
 which requires proportional taxation. See Burke v. Bedlem, 57 Cal. 594. 
 There is, however, no objection from the point of view of the United States 
 constitution to such taxation. Farrington v. Tenn. 95 U. S. 679, 687, but the 
 * courts will not presume that it is the intention of the legislature to impose such 
 double taxation. New Orleans v. Houston, 119 U. S. 265, 278; Salem Iron 
 Factory v. Danvers, 98 Mass. 19. 
 
 TAPPAN, COLLECTOE V. MERCHANTS NATIONAL BANK. 
 
 Supreme Court of the United States. October, 1873. 
 19 Wallace, 490. 
 
 Appeal from the Circuit Court for the Northern District of Illi- 
 nois, in which court the Merchants' National Bank of Chicago a 
 bank incorporated under the "Act to provide a National currency/' 
 &c., approved June 3, 1864, (13 Stat. at Large, 99), and having 
 its banking house and carrying on its operations of discount and 
 deposit in the town of South Chicago, Cook County, Illinois filed 
 a bill against one Tappan, collector of county and municipal taxes, 
 in the said town of South Chicago, Cook County, to enjoin his col- 
 lection of such taxes upon any of the shares of stock in the said 
 bank, assessed under a statute of Illinois, passed June 13, 1867. 
 
 The court below, considering that the law of Illi- 
 nois laying the tax was in violation of its constitution, decreed an 
 injunction. From that decree this appeal was taken.
 
 TAPPAN V. MERCHANTS NATIONAL BANK. 419 
 
 The CHIEF JUSTICE delivered the opinion of the court. 
 
 We are called on in this case to determine whether the General 
 Assembly of the State of Illinois could, in 1867, provide for the 
 taxation of owners of shares of the capital stock of a National 
 bank in that State, at the place, within the State, where the bank- 
 was located, without regard to their places of residence. The stat- 
 ute of Illinois, under the authority of which the taxes complained 
 of were assessed, was passed before the act of Congress, approved 
 February 10, 1863, (15 Stat. at Large, 34) which gave a legislative 
 construction to the words "place where the bank is located, and not 
 elsewhere/' as used in section forty-one of the National Banking 
 Act, (13 Id. 112) and permitted the State to determine and direct 
 the manner and place of taxing resident shareholders, but provided 
 that non-residents should be taxed only in the city or town where 
 the bank was located. 
 
 The power of taxation by any State is limited to persons, prop- 
 erty, or business within its jurisdiction. (State Tax on Foreign- 
 held Bonds, Railroad v. Pennsylvania, 15 Wallace 319.) Personal 
 property, in the absence of any law to the contrary, follows the per- 
 son of the owner, and has its situs at his domicile. But, for the 
 purposes of taxation, it may be separated from. him, and he may 
 be taxed on its account at the place where it is actually located. 
 These are familiar principles, and have been often acted upon in 
 this court and in the courts of Illinois. If the State has actual 
 jurisdiction of the person of the owner, it operates directly upon 
 him. If he is absent, and it has jurisdiction of his property, it 
 operates upon him through his property. 
 
 Shares of stock in National banks are personal property. They 
 are made so in express terms by the act of Congress under which 
 such banks are organized. (13 Stat. at Large, 12.) They are a 
 species of personal property which is, in one sense, intangible and 
 incorporeal, but the law which creates them may separate them 
 from the person of their owner for the purposes of taxation, and 
 give them a situs of their own. This has been done. By section 
 forty-one of the National Banking Act, it is in effect provided that 
 all shares in such banks, held by any person or body corporate, may 
 l)e included in the valuation of the personal property of such per- 
 son or corporation in the assessment of taxes imposed under State 
 authority, at the place where the bank is located, and not else- 
 where. (13 Stat. at Large, 112.) 
 
 The State, therefore, within which a National bank is situated
 
 420 LISTING OF PKKSONS AND VALUATION. 
 
 has jurisdiction, for the purposes of taxation, of all the shareholders 
 of the bank, both resident and non-resident, and of all its shares, 
 and may legislate accordingly. 
 
 The State of Illinois, thus having had, in 1867, the right to tax 
 all the shareholders of National banks in that State on account of 
 their shares, it remains to consider at what place or places within 
 the State such taxes could be assessed. 
 
 It is conceded that it was within the power of the State to tax 
 the shares of non-resident shareholders at the place where the bank 
 was located, but it is claimed that under the constitution of the 
 State resident shareholders could only be taxed at the places of their 
 residence. We have not been referred to any express provision of 
 the constitution to that effect. There is nothing which in terms 
 prohibits the General Assembly from separating personal property 
 within the State from the person of the owner and locating it at 
 appropriate places lor the purposes of taxation, but it is insisted 
 that sections two and five of Article 9 of the Constitution of 1848, 
 which was in force when the act of 1867 was passed, contain an im- 
 plied prohibition. 
 
 The constitution does not undertake to fix the value of property. 
 Neither does it prescribe any rules by which it shall be fixed. That 
 is left to the General Assembly, for the provision in that respect is, 
 "such value to be ascertained by some person or persons to be 
 elected or appointed in such manner as the General Assembly shall 
 direct, and not otherwise/' The mode and manner in which the 
 persons appointed to make the valuation shall proceed, are left to 
 the discretion of the General Assembly. In fact, the whole ma- 
 chinery of taxation must be contrived and put into operation by the 
 legislative department of the government. 
 
 As part of this machinery taxation districts must be created. All 
 property within the district must be taxed by a uniform rate. If 
 property is actually within a district it is but proper that the 
 legislature should provide that it should be listed, valued and as- 
 sessed there. In fact, the last clause of section five, Article 9, seems 
 to make that a duty, for it provides that the General Assembly shall 
 require that all property within the limits of municipal corpora- 
 tions, belonging to individuals, shall be taxed for the payment of 
 debts contracted under authority of law. 
 
 This power of locating personal property for the purpose of tax- 
 ation without regard to the residence of the owner has often been 
 exercised in Illinois, and sustained by the courts.
 
 TAPPAN V. MERCHANTS NATIONAL BANK. 421 
 
 The question is then presented whether the General Assembly, 
 having complete jurisdiction over the person and the property, could 
 separate a bank share from the person of the owner for the pur- 
 poses of taxation. 
 
 A share of bank stock may be in itself intangible, but it repre- 
 sents that which is tangible. It represents money or property in- 
 vested in the capital stock of the bank. That capital is employed" 
 in business by the bank, and the business is very likely carried on 
 at a place other than the residence of some of the shareholders. 
 The shareholder is protected in his person by the government at the 
 place where he resides; but his property in this st'ock is protected 
 at the place where the bank transacts his business. If he were a 
 partner in a private bank doing business at the same place, he might 
 be taxed there on account of his interest in the partnership. It is 
 not easy to see why, upon the same principle, he may not be taxed 
 there on account of his stock in an incorporated bank. His business 
 is there as much in the one case as in the other. He requires for it 
 the protection of the government there, and it seems reasonable that 
 he should be compelled to contribute there to the expenses of main- 
 taining that government. It certainly cannot be an abuse of legis- 
 lative discretion to require him to do so. If it is not, the General 
 Assembly cr.n rightfully locate his shares there for the purpose of 
 taxation. 
 
 But it is said to be a violation of the constitutional rule of uni- 
 formity to compel the owner of a bank share to submit to taxation 
 for this part of his property at a place other than his residence, be- 
 cause other residents are taxed for their personal property where 
 they reside. It is a sufficient answer to this proposition to say that 
 all persons owning the same kind of property are taxed as he is 
 taxed. Absolute equality in taxation can never be attained. That 
 system is the best which comes the nearest to it. The same rule-; 
 cannot be applied to the listing and valuation of all kinds of prop- 
 erty. Railroads, banks, partnerships, manufacturing associations, 
 telegraph-companies, and each one of the numerous other agencies 
 of business which the inventions of the age are constantly bringing 
 into bu?iness, require different machinery for the purposes of their 
 taxation. The object should be to place the burden so that it will 
 bear as nearly as possible equally upon all. For this purpose, dif- 
 ferent systems, adjusted with reference to the valuation of different 
 kinds of property arc adopted. The courts permit this. Thus, in a 
 case in Illinois, involving the system adopted for the taxation of
 
 422 LISTING OF PERSONS AND VALUATION. 
 
 bank shares, it was said by the Supreme Court, (McVeagk v. Chi- 
 cago, 49 Illinois, 329), "in view of this legislation it must be ap- 
 parent that a system of taxation for bank shares was designed pecu- 
 liar to itself and independent of the general revenue laws of the 
 State;" and the authority of the law was sustained and enforced. 
 
 Again, it is said that the law in question destroys the uniformity 
 of taxation, because it provides for the collection of the taxes as- 
 sessed on account of this kind of property in an unusual way. The 
 constitution does not require uniformity in the manner of collec- 
 tion. Uniformity in the assessment is all it demands. When as- 
 sessed the tax may be collected in the manner the law shall pro- 
 vide; and this may be varied to suit the necessities of each case. 
 
 We have not felt called upon to consider whether the General 
 Assembly could, under the provisions of the act of Congress, pro- 
 vide for the taxation of shareholders at any other place within the 
 State than that in which the bank is located. It is sufficient for the 
 purposes of this case that it might tax them there. 
 
 Decree reversed, and the cause remanded with instructions to pro- 
 ceed 
 
 IN CONFORMITY AVITH THIS OPINION. 
 See also New Orleans v. Stempel 175 U. S. 309, Supra. 
 
 PELTON V. NATIONAL BANK. 
 
 Supreme Court of the United States. October, 1879. 
 101 United States 143. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 
 The Commercial National Bank of Cleveland, Ohio, organized 
 under the act of Congress of 1864, creating a national banking sys- 
 tem, and by virtue thereof entitled to sue in the circuit courts of 
 the United States, brought this bill in equity to enjoin Pel ton, the 
 treasurer of the county of Cuyahoga, in which the city of Cleve- 
 land is situate, from collecting a tax alleged to be illegal. . . . 
 
 It is .... alleged that the tax, as assessed, is greater 
 than that assessed on other moneyed capital in the hands of indi- 
 viduals, citizens of that State, and is, therefore, in conflict with 
 sect. 5219 of the Revised Statutes of the United States.
 
 PELTON V. NATIONAL BANK. 423 
 
 The decree below was in favor of the complainant, and Pelton ap- 
 pealed to this court. 
 
 The bill states very distinctly that the principle on which the 
 valuation of the shares of the bank for taxation is made "destroys 
 the uniformity of the rule fixed by the Constitution, and violates 
 the obligation thereby imposed to treat all property alike, to the 
 end that all property may bear an equal burden of taxation, and is 
 subversive of the act of Congress allowing such shares to be taxed 
 and intended to protect the owners thereof from greater burdens 
 than were imposed on other moneyed capital at the place where the 
 bank was located." "The necessary effect," it is added, "of the pro- 
 ceedings had in the assessment and levy of the taxes standing 
 against the shareholders of your orator, and now about to be en- 
 forced, has been to deprive such shareholders, both in the matter of 
 valuation and equalization, of all benefit of the Constitution and 
 general laws of the State, by which only uniformity in the burden 
 of taxation upon all descriptions of property could be secured, to 
 take from them the security afforded by the limitation in the act of 
 Congress and to impose upon them such excessive exactions as to 
 make the franchises granted by said act comparatively useless." The 
 answer, by way of denial, says that "the taxes mentioned in said 
 complainant's bill, assessed upon the shares of said complainant's 
 banking association, are not taxed at a greater rate than is imposed 
 by the State of Ohio upon other moneyed capital in the hands of in- 
 dividual citizens of said State resident in the city of Cleveland, 
 where said banking association is established and located." 
 
 It is thus very clear that the question, whether the taxation of 
 which the bank complained was a tax on its shares greater than 
 that on other moneved capital invested in Cleveland, was fairly 
 raised by the pleading. 
 
 The argument is advanced here which we considered in People v. 
 Wetn-cr (100 U. S. 539), namely, that if the amount of tax as- 
 sessed on these bank shares is governed by the same percentage on 
 the valuation as that applied to other moneyed capital, the act of 
 Congress is satisfied, though a principle of valuation is adopted 
 by which inequality and injustice to the owners of them must 
 necessarily result. We do not propose to go over that argument 
 again. The cases were considered together in conference, because 
 they involved that principle. It is sufficient to say that we are quite 
 satisfied that any system of assessment of taxes which exacts from 
 the owner of the shares of a national hank a larger sum in propor-
 
 424 LISTING OF PERSONS AND VALUATION. 
 
 tion to their actual value than it does from the owner of other 
 moneyed capital valued in like manner, does tax them at a greater 
 rate within the meaning of the act of Congress. 
 
 It is not asserted that any different percentage on the valuation 
 established was applied to these two classes of capital. The bill very 
 clearly shows that the source of the evil was in the unequal valua- 
 tion. 
 
 Taking the answer, with the meaning which the counsel who 
 drew it attaches in argument here to the words, "taxed at a greater 
 rate," it may be said to amount, as a negative pregnant, to an ad- 
 mission that the valuation was unequal, as charged in the bill. Not 
 only so, but it is not denied in argument that while all the per- 
 sonal property in Cleveland, including moneyed capital not invest- 
 ed in banks, was in the assessment valued far below its real worth, 
 say at one-half or less, the shares of the banks, after deducting the 
 real estate of the banks separately taxed, were assessed at their full 
 value, or very near it. The only witness who testified on the sub- 
 ject in this case at all was the auditor of the county of Cuyahoga 
 for the years 1876 and 1877, who had been for many years pre- 
 viously an employe in the auditors office. He says that, as county 
 auditor, he was a member of the board of county equalization, and 
 acted as such in equalizing during those years the valuation of the 
 shares of the various national and other banks; that the valuation 
 placed on the shares of national banks was higher in proportion 
 than the valuation on other personal property, including banking 
 capital. He says that the matter was talked over in the board, and 
 it was their aim to make the valuation higher, and that their val- 
 uation of national bank shares was intentionally higher than the 
 assessed value returned by private banks. 
 
 It is necessary here to examine into the mode of assessing the tax 
 as provided in the act of 1877, which related solely to the tax on 
 , bank shares. The first section required the cashier of every incor- 
 porated bank to make report to the county auditor of the names 
 and residences of its shareholders, the par value of each share, and 
 other facts necessary to enable the auditor to ascertain the value of 
 those shares. The second section required the auditor to assess 
 them at their true value in money, after deducting the real estate, 
 and to transmit the assessment with the report of the auditor to 
 the annual board of equalization of the county in which the bank 
 was located. This board was composed, in cities of the class to 
 which Cleveland belonged, of the county auditor and six citizens ap- 
 pointed by the city council. By the third section this board was
 
 PELTON V. NATIONAL BANK. 425 
 
 authorized to hear complaints and equalize the valuation of the 
 shares of such banks or banking association, as fixed by him, and 
 with full authority to equalize such shares according to their true 
 value in money. It is to be remembered that the witness whose 
 testimony we have stated was the county auditor who made the first 
 assessment or valuation of these shares, and he was a member of 
 this city board which had authority to equalize that valuation. It 
 was of this city board he was speaking when he said that they had 
 assessed bank shares generally higher than other personal property, 
 including, of course other moneyed capital; and that they had as- 
 sessed the shares of the national banks higher than private banks, 
 and. that it was their aim to do so. It is also important to observe 
 in reference to another view of the question, presently to be consid- 
 ered, that this discrimination was neither an accident or a mistake, 
 nor a rule applied only to this bank, but that it was a principle de- 
 liberately adopted to govern their action in the valuation of all the 
 shares of national banks, and was applied to them all without ex- 
 ception. It appears by the testimony of this witness that there 
 were seven national banks in the city of Cleveland whose shares, 
 as equalized by the city board for taxation, amounted to $3,236,500, 
 to all of which this rule of valuation, making their taxes much 
 higher than on other moneyed capital, was applied, and that this 
 was done for two years at least, and probably many more. 
 
 This act of 1877, however, provided another board of equaliza- 
 tion, composed of the auditor of state, treasurer of state, and attor- 
 ney-general, to whom all the assessments of bank shares made by 
 the county and city boards were to be referred, and to whom no 
 other property was referred, for an equalization which included the 
 whole State. This board could do no more than increase or dimin- 
 ish the valuation of such shares for each county and city, so as to 
 make them conform to some standard of equality among themselves 
 which that board might adopt. But the result of their action must 
 be such that it did not increase or diminish the aggregate value of 
 the amount returned by the county auditors of the whole State 
 more than $100,000. 
 
 This board, for the taxes now in contest, increased the valuation 
 of the shares of the complainant $250,000 above the sum of $912,- 
 000, at which it had been assessed by the county board, and it in- 
 creased the valuation of the shares of all the national banks of 
 Cleveland from the sum of $3,236,500 to $4,046,045. 
 
 It is thus seen that the auditor and the city board of equaliza- 
 tion valued these shares higher in proportion to other moneyed cap-
 
 426 LISTING OF PERSONS AND VALUATION. 
 
 ital in Cleveland to an extent which the witness does not state, but 
 which may be supposed to be thirty per cent, as it is shown to be in 
 comparison with real estate; and the State board added about one- 
 fourth to that, so that the tax on the national bank shares, against 
 which relief is sought in this suit, is between fifty and sixty per 
 cent on its real value greater than on other moneyed capital, and, 
 therefore, to that extent forbidden by the act of Congress. 
 
 For this injustice and this violation of the law there ought to be 
 some remedy. To the specific one of an injunction by a suit in 
 chancery, and, indeed, to any remedy by the bank, many objections 
 are raised; but all of them have been considered and overruled in 
 the case of Cummings v. National Bank (infra, p. 153), which was 
 argued at the same time this case was, it is unnecessary to repeat 
 here what is said in that case. 
 
 As the complainant has paid so much of this tax as was not in 
 violation of the act of Congress, we think the decree of the Circuit 
 Court enjoining the collection of the remainder was right. 
 
 , Decree affirmed. 
 
 Mr. Chief Justice WAITE dissented. 
 
 A higher rate of taxation may not be imposed on national bank stock than on 
 other moneyed capital except where the state is restrained by valid contract 
 entered into by it e. g. with a state bank, Leonburger v. Rouse, 9 Wallace (U. 
 S.) 468, and except where partial exemption of certain property has been 
 made to avoid double taxation. Hepburn v. School Directors, 23 Wallace (U. 
 S.) 480; Adams v. Nashville, 95 U. S. 19. But "other moneyed capital" does 
 not include trust company stock where the trust company is not engaged in 
 banking business. Mercantile National Bank v. Mayor 121 U. S. 138. See 
 also Mercantile National Bank v. New York, 172 N. Y. 35. 
 
 Further if deduction for debt from assessment for personal property is 
 permitted, such deduction must be permitted in case of assessment for national 
 bank stock. People v. Weaver, 100 U. S. 539. 
 
 Finally. States may tax national banks only in the way permitted by the 
 act of Congress. Owensboro National Bank v. Owensboro 173 U. S. 664.
 
 STATE EX REL. ROE V. WILLISTON. 427 
 
 VI. ASSESSMENT TO OWNER. 
 STATE EX REL. ROE V. WILLISTON. 
 
 Supreme Court of Wisconsin. January, 1866. 
 20 Wisconsin 228. 
 
 In 1853, a tract of land, 14^ rods wide and 64 rods deep, in the 
 city of Janesville, was sold and conveyed to J. M. Smith, and an 
 adjoining tract of the same depth, and eight rods wide, was sold and 
 conveyed to Mrs. Julia S. B. Smith, wife of said J. M. Smith; and 
 the whole was thereafter known as "Smith's ten acres," and was de- 
 scribed as ten acres in the assessment roll. In March, 1860, the 
 tract first mentioned was sold for $19.36, and conveyed to Charles 
 S. Roe. In 1861, the assessors of said city went upon the tract 
 belonging to Mrs. Smith, and were informed by Mr. Smith of the 
 sale and conveyance of the other tract to Roe, and had the boundary 
 between the tracts pointed out to them, and were requested to as- 
 sess the taxes on each of said tracts to the proper person, and prom- 
 ised so to do. The whole ten acres were again listed, however, as 
 a single tract, and the name of J. M. Smith put opposite, as that 
 of the owner. This fact did not become known to Mr. or Mrs. 
 Smith until the following winter, when the city treasurer refused 
 to receive any portion of the taxes charged against the ten acres 
 unless Smith or his wife would pay the whole thereof. On the 20tK 
 of January, 1862, said taxes being unpaid, the whole ten acres 
 were sold for the same to the city, and the certificate of sale assigned 
 in July following to Charles S. Roe. In 1864, Mrs. Smith died, 
 leaving two minor children, who were still living at the time of the 
 filing of this application. On the 10th of January, 1865, Mr. Smith 
 applied to the city treasurer for the purpose of redeeming the land" 
 so owned by Mrs. Smith; and received from him a certificate of re- 
 demption upon paying to him $6.88, with interest and fees. After 
 the 20th of January, 1865, Roe called upon the city clerk, Willis- 
 ton, tendered his certificate of sale, and the proper fee, etc., and 
 demanded a deed for the ten acres, which was refused on the ground 
 that the above named certificate of redemption of a part of said 
 land had been filed with said clerk. The application was for .i 
 mandamus to compel the issue of such a deed; and the petitioner 
 states, inter alia, that the part of said land so attempted to be re- 
 deemed, owing to the improvement existing thereon at the time of 
 the levying and assessing of said taxes of 1861, was worth more
 
 428 LISTING OF PERSONS AND VALUATION. 
 
 than two-thirds of the value of the whole of said land; that there 
 were also other taxes and assessments due and unpaid upon that 
 part of the land at the time of such alleged redemption, which were 
 not then paid; and insists that such pretended redemption was both 
 illegal and inequitable. 
 
 DOWNER, J. The writ of mandamus must be denied. The char- 
 ter of the city of Janesville provides, in substance (see sec. 15, ch. 
 3, and sec. 3, ch. 7), that the assessors shall be governed by the 
 provisions of law relating to assessors in towns in making out the 
 assessment rolls, so far as they are not inconsistent with the charter. 
 The assessor in towns was at the time of the assessment in question, 
 and still is, required to set opposite to each tract of land in the 
 assessment roll the name of the owner, if known; if not known, the 
 word "unknown." R. S. 1858, ch. 18 sees. 17 and 23; Laws of 
 1859, ch. 167, sec. 23; Laws of 1860, ch. 386, sec. 23. It appears 
 that the ten acres mentioned in the petition of the relator belonged 
 at the time of assessment in 1861, three and 18-100 acres to Mrs. 
 Smith, and the remainder to Roe, the relator; that the husband of 
 Mrs. Smith informed the assessor what portion of the ten acres 
 was owned by his wife, and what part was owned by Roe, pointing 
 out to him the division line, and requesting him to assess the same, 
 each part separately to its owner. He promised so to do, but failed 
 to do it, and assessed the whole tract together, and put down on the 
 roll the name of J. M. Smith as the owner of the whole. Blackwelt 
 on Tax Tit. page 175, says: "When it is shown that the name of 
 the original owner was known to the officer, and omitted, the list 
 will be held invalid; because the statutes expressly declare that the 
 name of the owner shall be inserted when it can be done. Where 
 an entire tract of land is assessed to one who owns only a portion 
 of it, the listing is illegal." He cites Baker v. Blake. 36 Maine, 
 433; Proprietors of Cardigan v. Page, 6. N. H., 182; Nelson v. 
 Pierce, id., 194; 1 Foster, 400; Merritt v. Thompson, 13 III, 716. 
 We do not see why the assessment roll as to the ten acres, and all 
 subsequent proceedings, are not void. It is true, there is in the 
 charter provision that the deed, when once executed, shall be con- 
 clusive evidence of certain facts and prima facie evidence of others. 
 Should we compel the execution of the deed, the purchaser might be 
 protected, or at least be in a better position than he is now. But 
 courts refuse to exercise this high power to give strength and valid- 
 ity to a title which is clearly defective on the merits. The People v. 
 The Mayor, etc., of New York, 10 Wend., 393. The relator holds 
 a tax certificate on ten acres of land, of which he now owns six
 
 CKUGEK V. DOUGHERTY. 429 
 
 72-100 acres, and did own it at the time of the assessment and sale, 
 and on which he ought to have paid the taxes, and he ought also 
 to have seen that it was properly described in the assessment roll. 
 He now demands a deed of the whole ten acres, and refuses the re- 
 demption money paid by the owner of the smaller portion, and main- 
 tains that she could not, under the provisions of the city charter, 
 redeem a part, but must redeem the whole ten acres, if any. He 
 has neither a legal nor an equitable right to such a deed. 
 
 By the Court. The motion for a peremptory writ of mandamus 
 is denied, with costs against the relator. 
 
 A motion for a rehearing in this cause was denied at the Janu- 
 ary term. 1866. 
 
 CRUGER V. DOUGHERTY. 
 
 Court of Appeals of New York. November, 1870. 
 43 New York, 107. 
 
 Appeal from a judgment of the late General Term of the Su- 
 preme Court in the sixth judicial district, affirming judgment on 
 a verdict directed for the plaintiff at the circuit. 
 
 By the Court PECKHAM, J The point is presented. 
 
 whether this alleged tax sale was void, by reason of failure to com- 
 ply with the directions of the statute in imposing the tax, and iu 
 the proceedings thereafter. 
 
 The statute authorizing this tax, makes it "the duty of the as- 
 sessors of each ward and town, while engaged in ascertaining the 
 taxable property therein, by diligent inquiry, to ascertain the 
 amount of rents reserved in any leases in fee, or for one or more 
 lives, for a term of years, exceeding twenty-one years, and charge- 
 able upon lands within such town or ward, which rents shall be as- 
 sessed to the person or persons, entitled to receive the same, as per- 
 sonal estate, which it is hereby declared to be, for the purpose of 
 taxation under this act." (S. L., 1846, p. 466, 1.) 
 
 The second section requires the board of supervisors to assess 
 such taxes "upon the person or persons, entitled to receive such 
 rents within the town or ward, where the lands upon which such 
 rents are reserved, are situated, in the same manner and to the 
 same extent as any personal estate of the inhabitants of such town." 
 
 In a^e>sing the tax, under which this lot was sold by the sheriff,
 
 430 LISTING OF PERSONS AND VALUATION. 
 
 the assessors put it down in their roll as follows: "The Kortright 
 patent, John Kortright and others legal heirs of John Kortright, 
 late of the city of New York, deceased, or their heirs or assigns, 
 for rent reserved in the town of Kortright, in the county of Dela- 
 ware, subject to taxation, estimated at a principal sum, which at a 
 legal rate of interest will produce an income equal in amount to 
 such rents. $26,195; $632.41, personal." 
 
 , The first objection to these taxes is, that the assessors have not 
 "assessed them upon the person or persons entitled to receive them/' 
 as they are required to do by the statute. 
 
 The assessment must be made in this case upon these persons, 
 "in the same manner, and to the same extent ^as any personal estate 
 of the inhabitants of such town." 
 
 The statute as to assessment for personal estate requires the name 
 of the person taxed to be put down in the roll in one column, and 
 the full value of his personal property in another. (1 R. S. 390, 
 9.) It is not denied that the names should be put down, but it is 
 insisted that they were sufficiently inserted on the tax roll. The 
 statute in this particular must be substantially complied with. Its 
 entire omission would be fatal to the validity of the tax. 
 
 Where the assessment of a tax for land was made against a per- 
 son neither "owner or occupant" of the land as required by the 
 statute, the assessment has been held to be absolutely void. (Whit- 
 ney v. Thomas, 23 N. Y., 281, at 284.) This, it must be remem- 
 bered, is an assessment for personal property against these parties. 
 
 Is the statement made here any better than if none had been 
 made as to the names of the persons assessed? Only one person is 
 named in the assessment roll, "John Kortright," and he had been 
 dead five years before this assessment was made. He was a son of 
 John Kortright, once owner of the patent, who died in 1810. 
 
 It cannot be pretended that this was sufficient to name him who 
 had been dead five years. The other designations are mere alter- 
 native classes. "Other legal heirs of John Kortright, deceased, or 
 their heirs or assigns." 
 
 It is said that the assessors acted judicially, and that this may 
 be likened to a judgment. Such a judgment against one of these 
 classes would scarcely be claimed to be valid, especially a judgment 
 entered without process or notice to any one. 
 
 It is, perhaps, not necessary to say, that the persons should lit- 
 erally be named in all cases; but they clearly should be as distinctly 
 identified, as if named.
 
 CKUGEK V. DOUGHEKTY. 431 
 
 In Wheeler v. Anthony (10 Wend., 346), it was held that a dis- 
 trict school tax assessed upon "the widow and heirs of Zopher S. 
 Wheeler, deceased," imposed upon them as owners and occupants of 
 a farm, was properly imposed in that form. It was said by the 
 court in that case, that "when property is owned by a- single indi- 
 vidual, it is proper and necessary that the name of such individual 
 should be inserted in the tax bill; but when a farm is owned or pos- 
 sessed by a mercantile or other firm, the assessment to such firm 
 would answer the same purpose as well as writing out each name." 
 
 If this were true, in that case, as to such a tax for a farm, a tax 
 can scarcely be imposed for personal property against tenants in 
 common in any such form, as the staute authorizes no such tax. 
 
 If tenants in common of personal property were taxed as a body 
 for so much personality, it would afford no opportunity to any one 
 of them to swear it off on account of debts that he might owe. 
 
 The statute says that the roll must state, first, "the names of alt 
 the taxable inhabitants, and fourth, the full value of the personal 
 property owned by such person, after deducting the just debts ow- 
 ing by him." (1 R. S., 390, 9.) 
 
 Such a taxation to a body of tenants in common complies with 
 neither of these provisions, and affords no opportunity to an indi- 
 vidual to have his tax corrected. A firm is not a person, like * 
 corporation. Hence the tax as to personal property should be upon 
 each individual, including his interest in the firm, as in all other 
 taxable personal property. But if the tax be valid upon a firm, it 
 does not follow that it would be valid when imposed upon a body 
 of tenants in common, in personality, as a body. 
 
 It is also urged that these persons are estopped from questioning 
 this tax now, because they have been assessed in this form for eight- 
 een years prior to this assessment, and have always paid it. 
 
 The payment of a tax for any number of years without legal pro- 
 ceedings, will not give validity to such proceedings when they are 
 questioned, if taken without authority of law. One might almost 
 as well defend an action for an assault and battery, by pleading 
 that he had beaten the plaintiff every year for many years, and 
 that this was the first time the plaintiff had ever complained. 
 
 The county treasurer seemed to think the assessment illegal, and 
 in issuing his warrant, he cut off two classes named in the assess- 
 ment, and issued it against the only person named, who. had been 
 dead for years, and others, heirs, etc.
 
 432 LISTING OF PEKSONS AND VALUATION. 
 
 If the assessment were void, the county treasurer could scarcely 
 make it valid by his warrant. 
 
 It is insisted that the assessors, in making this assessment, acted 
 judicially; that they had jurisdiction of the subject-matter, tin.- 
 rents, and of the persons entitled to receive them, and although 
 they committed errors, yet their action was not void, but only void- 
 able. The liability of assessors is not here in question, and it is 
 perhaps not necessary to discuss it. 
 
 But, if the purchaser, in this case, were a defendant claiming to 
 hold this property under these proceedings, he would fail. He 
 would fail even upon the ground assumed by the defense. 
 
 Surely it will not do to say, that because there are rents reserved 
 in the town, and they are receivable by some one, therefore what- 
 \P ever the assessors may do in relation to an assessment in such case 
 is valid, whether it be in substantial compliance with the statute or 
 not. The assessment must be made to some one. It is not suffi- 
 , Vj^ient to say generally to the persons entitled to receive the rents. 
 V$ They must be named and indicated. Until that is done, the asses- 
 sors have passed no specific judgment, have really exercised no juris- 
 diction. 
 
 It is a rule well established by authority, that when one claims to 
 hold another's property under statutory proceedings, as under a 
 sale for taxes, he must show that every material provision designed 
 for the security of the persons taxed, or their protection, has been 
 substantially complied with, otherwise the claim will fail. In fact 
 the rule is generally laid down with much more strictness. 
 
 For the reasons above stated, we think the purchaser under this 
 assessment took no title. 
 
 There are other defects insisted upon not deemed necessary to 
 consider. 
 
 The judgment is affirmed. 
 
 All the judges concurring judgment affirmed. 
 
 An assessment of land in the alternative as "'to unknown owners and to 
 all owners and claimants known and unknown" is void. Brady v. Dowden 59 
 Cal. 51 ; Shimmin v. Inman 26 Me. 228. But where an assessment to unknown 
 owners is permitted by the statute if an assessment, is thus made it will be 
 presumed that the name of the owner is unknown to the assessors. Himmell- 
 mann v. Steiner 38 Cal. 178. The assessor is not obliged to determine the 
 ownership. Hughes v. Reis, 40 Cal. 261. In New York land may be assessed 
 to the owner or occupant. Whitney v. Thomas 23 N. Y.' 285.
 
 VAN VOORHIS V. BUDD. 433 
 
 VAN VOORHIS V. BUDD. 
 
 Supreme Court of New York General Term May, 186S. 
 39 Barb our 479. 
 
 Appeal from a judgment of the county court of Dutchess county, 
 affirming the judgment of a justice of the peace. The plaintiff sued 
 to recover damages for the seizure and sale of certain personal prop- 
 erty; and the defendant justified the taking, as town collector, un- 
 der a tax warrant issued to him as such. The plaintiff recovered 
 a judgment before the justice. 
 
 By the Court, BROWN, J. This action is brought against the de- 
 fendant to recover damages for the seizure and sale of a horse, the 
 property of the plaintiff. The defendant justifies under a tax war- 
 rant, issued to him as collector of the town of Fishkill, in the county 
 of Dutchess, for the year 1861. 
 
 The tax is assessed upon the roll to Henry D. Van Voorhis, while 
 the real name of the plaintiff is William H. Van Voorhis. The 
 proof upon the trial, however, showed that the plaintiff was also 
 known in the town as Henry Van Voorhis, and he was the person 
 intended to be charged with the payment of the tax. Levi S. Van 
 Kleek, a witness for the defendant, testified that he was one of the 
 assessors of the town of Fishkill during the year 1861, and made 
 the assessment against the plaintiff to Henry D. Van Voorhis. He 
 saw him and spoke to him about the assessment, and knew him by 
 the name of Henry Van Voorhis. His name was upon the assess- 
 ment roll for the year previous as Henry D. Van Voorhis, and the 
 witness took the name from that roll. The plaintiff himself was 
 examined as a witness, and said he was more frequently called Hen- 
 ry than William Henry Van Voorhis. 
 
 The assessors are, by diligent inquiry, to be made between certain 
 times named in the statute, to ascertain the names of all the taxa- 
 ble inhabitants in their respective towns or wards, and also all the 
 taxable property real or personal within the same, and from these 
 they are to prepare the assessment rolls in the manner prescribed. 
 When the collector receives the tax warrant he is required to call 
 at least once upon the person taxed and demand payment of the 
 tax charged to him on his property. If the person refuse or neglect 
 to make payment the collector shall levy the same by distress and 
 sale of the goods and chattels of the person who ought to pay the 
 same. It is evident that this law cannot be executed as to the names 
 of persons charged with the payment of taxes with the same pre- 
 28
 
 434 LISTING OF PEKSOXS AND VALUATION. 
 
 cision and exactness formerly observed in regard to the names of 
 persons made parties defendants in actions at law. In these latter 
 proceedings, when the defendant pleaded his misnomer in abate- 
 ment he was bound to furnish the plaintiff with his real name and 
 swear to the truth of the plea, and the plaintiff might have leave to 
 amend his declaration or institute a new action, and the remedy as 
 well as the right of action was preserved to him^ notwithstanding 
 the error in the defendant's name. In the assessment of a tax no 
 such result would ensue. The statute provides no other means than 
 the diligence and inquiries of the assessors to ascertain the real 
 names of the tax payers; and if an error is made it is fatal to the 
 recovery of the tax. Reasonable certainty then is all that can or 
 should be required. If the party defendant was as well known by 
 the name given in the declaration as by his baptismal name, that 
 was regarded as a good replication to a plea of misnomer in abate- 
 ment. And so in the assessment of the tax in question, if the plain- 
 tiff was known by the name of Henry Van Voorhis, that was a suffi- 
 cient justification for charging him with the payment of his share 
 of the public taxes by that name. This court has held, in the case 
 of Wheeler v. Anthony, (10 Wend. 346,) that a tax assessed to the 
 widow and heirs of Zophar S. Wheeler deceased, when they actually 
 owned and occupied the farm charged, was a sufficient compliance 
 with the directions of the statute to justify the collector in execut- 
 ing the warrant by the seizure and sale of a cow to satisfy the tax. 
 In respect to the presence of the letter D. between the words Henry 
 and Van Voorhis upon the tax roll, it is to be regarded as sur- 
 plusage, upon the well known rule that the law recognizes but one 
 Christian name. (See Franklin and others v. Talmadge, 5 Johns. 
 84; Rosevelt v. Gardner, 2 Cowen 463.) There was no proof 
 offered upon the trial to show that there was any other person in 
 the town of Fishkill known by the name of Henry Van Voorhis, or 
 Henry D. Van Voorhis, to whom the charge might have been re- 
 ferred; so that there could be no confusion and no uncertainty in 
 regard to the person whose duty it was to pay the tax. 
 
 The judgments in the justice's and in the county court should be 
 reversed, with costs. 
 
 Initials also, if identical with those of the owner of the property, are suf- 
 ficient and the Christian name need not be used. Douglass v. Daken 46 Cal. 51. 
 
 In case of corporations the strictness of the rule as to name is not so 
 great. People v. Sierra Buttes Quartz (Mining) Co., 39 Cal. 511; Farns- 
 worth (Mfg.) Co. v. Rand 65 Me. 22.
 
 TYLEE V. INHABITANTS OF HAKDWICK 435 
 
 TYLER V. INHABITANTS OF HARDWICK. 
 
 Supreme Judicial Court of Massachusetts, October, 181$. 
 6 Metcalf 470. 
 
 SHAW, C. J. This action is brought to recover back money al- 
 leged to have been paid under compulsion, as a town tax. The ob- 
 jection is, that the plaintiff's Christian name was not inserted in the 
 valuation, nor in the list and warrant committed to the collector, 
 but only hie surname of Tyler. 
 
 The question arising from the facts in the case is, whether tho 
 plaintiff was rightfully required by the collector to pay the tax, or 
 whether, as a tax unlawfully levied, he was wrongfully required to 
 pay it, and can recover it back in this action. 
 
 Whilst, on the one hand, it is important to the security of the 
 citizen, that as much regularity and uniformity as is practicable 
 should be maintained in the system of direct taxation, and many 
 laws directory to the public officers have been framed with a view 
 to the attainment of that object; it is also important that, as far 
 as practicable, all persons liable to taxation should pay their just 
 proportion of the public charges, and not escape by means of slight 
 mistakes and frivolous objections. 
 
 One of the statutes, to which we have been referred, is designed 
 to promote this object, by providing that a tax shall not be avoided 
 by an error or mistake in the name, if in fact the party whose name 
 was mistaken be liable to taxation, and was the person intended by 
 the assessors to be taxed. Rev. St. c. 8, 5. The provision is this: 
 "If, -in the assessors' lists, or in their warrant and list committed to 
 the collectors, there shall be any error in the name of any person 
 taxed, the tax assessed to him may, notwithstanding such error, be 
 collected of the person intended to be taxed, provided he is taxable, 
 and can be identified by the assessors." 
 
 The only question then is, whether this clause was intended to 
 apply to a case where the error in the name exists as well in the 
 valuation as in the assessors' warrant to the collector. 
 
 It was argued, that all which was intended is, that when the name 
 ' is right in the valuation, but erroneously transcribed into the war- 
 rant, the tax shall not be avoided, as the warrant can be corrected 
 by the valuation. But we think the statute was intended to go 
 much farther, and to provide for a mistake in both. The words 
 "assessor's lists," in this clause, stand for the valuation, and "their 
 warrant and list" are described as that which is "committed to the
 
 436 LISTING OF PERSONS AND VALUATION. 
 
 collectors." The statute is plain and explicit, and covers all cases 
 of error in the name, and was intended, we think, to apply to a 
 case where the name is mistaken by omitting, as well as by adding 
 or by misnaming. The only things required are, that the person 
 shall be liable to taxation, and be in fact the person intended to be 
 taxed under such designation. . . . These facts must of neces- 
 sity be proved by evidence aliunde. The fact of the identity of 
 the party, and the intention of the assessors, must in general be 
 proved by them. 
 
 Such seems to us to be the true construction of the statute; and 
 though it may sometimes lead to consequences, operating hardly 
 upon individuals, it will be attended practically with little danger, 
 and with less evil than the escape of persons from paying a just 
 share of the tax, on account of formal errors and mistakes. It is 
 not to be overlooked that such errors will, in most cases, arise from 
 the default of the tax-paying inhabitant himself, who fails to per- 
 form the duty, required by law, of giving in his name and list to 
 the assessors. 
 
 Upon this view of the statute, the court are of opinion, that the 
 evidence should have been received, and that notwithstanding the 
 alleged error in not inserting the plaintiff's Christian name, he was 
 liable to the tax, and compellable to pay it, if the facts were proved, 
 the evidence of which was offered; and therefore, that the verdict 
 must be set aside, and a new trial had. 
 
 But where there is no such statute, assessment to sutfia^e alone is not 
 good. Crawford v. Schmidt, 47 CaT. 617. 
 
 VII. ASSESSMENT or SEPARATE PARCELS. 
 COUNTY COMMISSIONERS V. UNION MINING CO. 
 
 Court of Appeals of Maryland. October, 188S. 
 61 Maryland 547. 
 
 STONE, J., delivered the opinion of the court. 
 
 The bill in this case is for an injunction to restrain the County 
 Commissioners of Allegany County and the tax collector from 
 selling the property of the appellee, who insists that a portion of the 
 tax levied upon its property is illegal and void. A preliminary in- 
 junction was granted by the Court below, and from this order an 
 appeal has been taken.
 
 COUNTY COMMISSIONERS V. UNION MINING CO. 437 
 
 The appellee assigns several reasons why the assessment is illegal 
 and void. 
 
 1st. Because the property of the appellee so taxed, consists of 
 several tracts of non-adjoining land lying in different parts of the 
 county, and known by distinctive names, but the appellee was taxed 
 for a number of acres in gross, without giving the name or num- 
 ber of acres in any one tract. 
 
 The County Commissioners have the exclusive power to levy and 
 collect taxes, and in some cases to value and assess property in the 
 manner pointed out by law. While they constitute a tribunal with 
 special and limited statutory powers, yet acting within the scope of 
 such powers their action is conclusive, and cannot be reviewed by 
 a Court of Equity. The collection of taxes will not be interfered 
 with or restrained by a Court of Equity for mere irregularities in 
 their proceedings, or for any hardship that may result from their 
 collection. It is only when the tax itself is clearly illegal, or the 
 tribunal imposing it has clearly exceeded its powers, or the rights 
 of the tax-payers have been violated, that the interposition of the 
 special remedy by injunction can be successfully invoked, -and only 
 then when no appellate tribunal has been created with power to 
 remedy the wrong. The bill in this case is a long one, and rather 
 argumentative than specific in some of its statements. 
 
 But there are some objections urged by the appellee that require 
 a more extended notice. One of these is the fact alleged in the bill 
 that the lands of the appellee consisted of half a dozen or more sep- 
 arate and distinct tracts of land, each having a well known name, 
 and lying in different parts of the county, and having different val- 
 ues, while the only assessment made is upon 4245 acres of land 
 which is valued at $10 per acre, making the whole valuation $42,- 
 450. This raises the question whether the law imposes upon the 
 Commissioners the duty of assessing each tract separately, and 
 whether a failure so to do is such an infringement of the rights of 
 the appellee, as he is entitled to have redressed by a Court of 
 Equity. 
 
 The lands of the appellee wore required to be valued and assessed 
 under the general assessment law of 1876. and we must presume 
 that they were assessed and returned to the Commissioners accord- 
 ing to law. No taxes however were then paid upon these lands, but 
 the i-toc-k of the corporation representing all its property, and in- 
 cluding these lands were taxed. The Act of 1878, chap. 178, altered
 
 438 LISTING OF PERSONS AND VALUATION. 
 
 the law in that respect, and made the lands of this and other cor- 
 porations, liable to direct taxation. That Act provided that the 
 president or other proper officer of any corporation, that might own 
 real property, should furnish to the County Commissioners "a true 
 statement of such real property situate or located in such county; 
 and such real property shall be valued and assessed by said County 
 Commissioners to the incorporated institution owning the same." 
 
 This appears to have been done, and the County Commissioners 
 of Allegany proceeded to value and assess the real estate of the 
 appellee. 
 
 It will be seen from this Act, that the president or other proper 
 officer is required to furnish a true statement of the real property, 
 and the Commissioners are then to value and assess it. If the ap- 
 pellee furnished the statement of its lands, that is now found on 
 the books of the Commissioners, and which has been before re- 
 ferred to, then the appellee cannot complain of the assessment in 
 gross. If the president of the appellee corporation merely described 
 the lands as 4245 acres of land, in the statement he furnished the 
 commissioners, then the appellee is estopped from saying that the 
 assessment is improper and void, because such assessment is the con- 
 sequence of its own act. But if the president did furnish in detail 
 a proper statement, showing the names, number of acres, and loca- 
 tion of the several tracts, then it was manifest error in the Commis- 
 sioners to change it, and make the assessment that they did. 
 
 It is true that the Act of 1878, ch. 178, does not prescribe any 
 particular mode of assessment, but being in po/ri materia with the 
 Act of 1876, ch. 260, the general assessment law, they should be 
 taken together, and we may conclude that the Legislature intended 
 that the rules they had laid down for the assessment of all the real 
 property should be observed, when the County Commissioners werr 
 called upon to re-assess a part of it. 
 
 The Act of 1876, ch. 260, sec. 17, the general assessment law, 
 points out, with great particularity, the mode and the manner of 
 assessing real estate. It says: "In valuing real estate in any county 
 in this State, except in a city in such county, the assessors shall 
 specify so far as may be practicable, the name or names of the tracts 
 or parcels of land so valued and the number of acres or quantity in 
 each, and the value per acre." 
 
 There are many obvious reasons why this particularity is required. 
 The owner of several tracts of land, lying in different localities, 
 and of different values, is entitled to the judgment of the assessors 
 in the first instance, and of the County Commissioners, if they alter
 
 COUNTY COMMISSIONERS V. UNION MINING CO. 439 
 
 the first assessment, of the value of each tract separately. It is a 
 valuable and important right to the owner, as it enables him to com- 
 pare the taxation of his own with adjoining property, and see that 
 no injustice is done him by overestimates. 
 
 The community is also entitled to this knowledge, which is often 
 an important factor in the sale and transfer of real estate. The law 
 recognizes this right very distinctly in sec. 22 of Art. 11 of the 
 Revised Code, that expressly requires the clerk of the County Com- 
 missioners to keep an accurate account of all property, and the val- 
 uation thereof, which shall be open to inspection by the public, 
 without fee or reward. 
 
 If we examine the Act as to real property in a city, we find still 
 greater particularity required. The number of front feet, the depth 
 of the lot, the street upon which it lies, and if a house is upon the 
 lot, even the number of the house is required. 
 
 If in the face of all this particularity the County Commissioners 
 undertake to average the value of half a dozen different tracts of 
 land, lying in widely differing localities, they violate the mode and 
 manner of the assessment required by law. 
 
 It is no answer for the Commissioners to say, that the amount of 
 tax that the owner has to pay is not increased by the mode of aver- 
 age that they have adopted, and that he would have to pay the same 
 tax if each tract were re-valued separately. It is the absolute right 
 of the owner to have them taxed separately, and this lumping re- 
 assessment is a direct violation of that right. 
 
 Judge Cooley says: "When two parcels are owned by the same 
 person, if the statute requires a separate assessment, obedience to the 
 requirement is essential to the validity of the proceedings. It can- 
 not be held in any case that it is unimportant to the tax-payer 
 whether this requirement is complied with or not. Indeed, it is 
 made solely for his benefit; it being wholly immaterial, so far as 
 the interest of the State is concerned, whether separate estates are or 
 are not separately assessed. And where a requirement has for its sole 
 object the benefit of the tax-payer, the necessity of a compliance 
 with it cannot be made to depend upon the circumstances of a par- 
 ticular case, and the opinion of a court or jury regarding the im- 
 portance of obedience to it in that instance. That method of con- 
 struing statutes would abolish all certainty." Cooley on Taxation, 
 280. 
 
 As we have said before, we think the power to assess given by 
 the Act of 1878 to the Commissioners, means an assessment such
 
 440 LISTING OF PERSONS AND VALUATION. 
 
 as was prescribed by the Act of 1876, and it was clearly an error 
 in the Commissioners to assess it in a different manner. 
 
 We are strengthened in this view by the fact that the Act of 
 1ST8, ch. 178, sec. 150, gives the County Commissioners the power 
 annually to correct any assessment. That section enacts : 
 
 "And if the real estate or other property shall, from any cause, 
 have increased or diminished largely and materially in value since 
 the last levy, they shall correct, alter, and amend the assessment of 
 the same, so as to conform to its present value." 
 
 The true construction of this section is that it gives the Com- 
 missioners the power to alter the assessment as made by the asses- 
 sors, if in their judgment it had largely increased or diminished. 
 It does not authorize them to change the mode and manner in which 
 the property was required by law to be assessed. 
 
 But as the bill leaves it in doubt whether the real estate of the 
 appellee was assessed in gross, by the act of the appellee in furnish- 
 ing the statement, we cannot make a decisive order on that point. 
 
 Where land is platted as city lots, assessment by the acre as before is 
 bad. Grace v. McBee, 23 Kan. 379. See Jennings v. Collins, 99 Mass. 29, 
 as to what is a parcel, where it is held that mere division by owner for pur- 
 poses of sale will not make assessment of such parcels necessary. 
 
 BROWN V. HAYS. 
 
 Supreme Court of Pennsylvania. October, 1870. 
 66 Pennsylvania State 229. 
 
 AGNEW, J. This case has leading features which, being deter- 
 mined, will render it unnecessary to consider the assignments of 
 error in detail. The first and most important fact which, to a great 
 extent, rules the case is, that lot No. 4023 of 1026 acres is one tract 
 of land, and belongs to a single ownership. It all lies in Polk town- 
 ship, except an insignificant parcel caused by a slight deviation from 
 the northern Boundary of the tract in running the line of Polk 
 township, leaving 16 acres in a narrow triangle lying within the 
 township of Heath. Until 1859 it had all been assessed and taxed 
 in Polk township, and Hays, the plaintiff, had paid the taxes ac- 
 cordingly. In 1859 the assessment was returned originally as 1026 
 acres in Polk township; but by some action of the county commis-
 
 BROWN V. HAYS. 441 
 
 sioners not clearly explained, the assessment had been altered to 
 726 acres in that township. In the same year the duplicate and 
 supervisors' return for Heath township exhibits an assessment of 
 300 acres of No. 4023 in Heath township. It was on this return 
 the treasurer's sale took place in 1860, under which the defendants 
 claimed. Joseph Henderson, the clerk of the commissioners, is una- 
 ble to state at whose instance the change from 1026 to 726 acres in 
 Polk township was made all he can say is, he thinks it was on the 
 representation of the assessor, or someone else in whom the commis- 
 sioners had confidence. The strong probability is, it was caused by 
 the incorrect, indeed false assessment made for Heath township; 
 and unless it was done by way of revision by the board of assessors 
 it was irregular. If the testimony of Henderson, the clerk, proves 
 anything, it is that this alteration in the assessment of 4023 in Polk 
 township was not done at the instance of the board of revision; for 
 he "don't know (he says) that there was any board of revision about 
 it." The 2d section of the Act of 3d April 1804 directs all un- 
 seated lands "to be valued and appraised as other property; and 
 both the 8th section of the Act of 1799 (3 Smith's Laws 395), and 
 the 2d and 4th sections of the revised Act of 15th April 1834 com- 
 mit to the proper assessor the duty of taking the account, and mak- 
 ing the return and valuation of the taxable property within this 
 township. In Respublica v. Deaves, 3 Yeates 465, it was held that 
 under the Act of 1799 the valuation of the assessors is binding on 
 the county commissioners; and by a parity of reason, the return of 
 a tract which fixes its identity and liability to taxation is more so. 
 The 6th section of the Act of 15th April 1834 expressly provides 
 for the assembling of the assessors, on a day to be appointed by 
 the commissioners, to make the returns of the several assessments, 
 when it shall be the duty of the assessors to point out errors, and 
 if the errors be established, the commissioners shall correct the re- 
 turns accordingly. 
 
 This being the legal system for the correction of errors, in the as- 
 sessment, it is an important fact that in consequence of Hays's resi- 
 dence in a remote part of the state, and his paying the taxes of 1859 
 by the hand of another not familiar with his lands, he had no notice 
 of the assessment in Heath township. Having always before paid 
 his taxes for his lands as lying in Polk township, he had no reason 
 to suppose that his land was taxed elsewhere. His payment to the 
 treasurer of all the taxes assessed in Polk township unquestionably 
 operated to discharge all the land lying in that township from sale. 
 The payment was for the taxes of lot No. 4023 in Polk township
 
 442 LISTING OF PERSONS AND VALUATION. 
 
 and not merely for 726 acres of land. The assessment was made 
 by the number of the lot and also in the name of the original war- 
 antee; indicating clearly the intent to assess the lot as a whole, and 
 as a single ownership. 
 
 .... 
 
 The judgment is affirmed. 
 
 WOODSIDE V. WILSON. 
 
 Supreme Court of Pennsylvania. 1858. 
 32 Pennsylvania State, 52. 
 
 THOMPSON, J. A sale of unseated land for taxes, which have 
 been actually assessed, and which have remained due and unpaid 
 "for one whole year," will pass the title, although assessed in a 
 wrong name or by a wrong number, if otherwise designated and 
 capable of identification. The reason for this is, the recognized 
 principle, that it is the land and not the owner, which is chargeable 
 and to be charged with the tax. It must, however, be susceptible of 
 identification, as the land assessed, otherwise the sale would be void. 
 The bond, an essential part, would, without any designation, be in- 
 valid, as being too vague to furnish a lien on the land, and thus 
 the sale would be inoperative. But, identification is a question, 
 arising on the evidence, for the jury; and what will be sufficient to 
 satisfy them, that the land sold was the land charged with the tax, 
 will support the sale. This is conclusively settled in Stewart v. 
 Shoenfelt. 13 S. & R. 360; Strauch v. Shoemaker, 1 W. & S. 174; 
 Burns v. Lyon, 4 W. 363; Thompson v. Fisher, 6 W. & S. 520; 
 Dunden v. Snodgrass, 6 Harris 151 ; Russel v. Werntz, 12 Harris 
 337; Miller v. Hale, 2 Casey 436, and other cases. It was said in 
 Laird v. Heister, 12 Harris 463, "that the tax-books in the office 
 of the commissioners, and treasurer, were not intended to give notice 
 of the liability of the land for taxes, but merely the mode in which 
 tax accounts are kept." This seems a perfectly legitimate conclu- 
 sion, deducible from the principle asserted in Dunden v. Snodgrass, 
 and other cases, that the designation of the land will be sufficient, if 
 it afford the means of identification, and do not positively mislead 
 the owner. It will not do to assume that such a thing may not 
 occur ; but. in case of an owner anxious and willing to pay his taxes, 
 it is difficult to conceive of. For if, when he examines the assess-
 
 WOODSIDE V. WILSON. 443 
 
 ment books, and finds that the description or designation of the land 
 is defective, so much so, as to render uncertain or doubtful what 
 is really the assessment of the land sought for, he can relieve him- 
 self of all difficulty on that score, by procuring it to be assessed in 
 the office of the commissioners, by a proper description; and then 
 a payment of the tax so assessed, relieves the land from all danger. 
 The tax being thus paid, a sale by any other description will amount 
 to nothing, as the duty is discharged, and the land, for the time 
 being, free from any charge. 
 
 The land in controversy was a part of donation tract N"o. 152, 
 8th district. The plaintiff below claimed it by virtue of a treasur- 
 er's deed, dated August 12th 1852, on a sale made June 14th 1852, 
 for the taxes of 1850-51. The land, 100 acres, had been sold, by 
 John Reynolds, to one Eleazer Rockwell, in 1840; who retained it 
 and paid the taxes on it, up to 1850, when he relinquished the land 
 to Reynolds, who immediately sold the land in controversy, to one 
 Wright, under whom the plaintiffs in error claim. The land was 
 assessed and sold as Xo. 1302, and in the name of E. Rockwell. The 
 assessors proved that it was the land in controversy, that was as- 
 sessed with the taxes, and the land which Rockwell had of Reynold?. 
 The assessments for a number of years prior to 1850, being given in 
 evidence, it appeared to have some times been assessed by the cor- 
 rect number, 152, sometimes as 1502, and 1302, E. Rockwell; and 
 a part to John Reynolds as 1502. Upon this state of facts, the 
 court below charged, in answer to several points of the defendants, 
 "that marks and surveys are not the exclusive and only indices lay 
 which it (the land) may be designated;" and "that it is not essen- 
 tially necessary that a donation tract should be assessed by its dis- 
 tinctive number, provided it has other names or means by which it 
 may be known;" and submitted the facts, on the question of the 
 identity of the land, as that on which the assessment was made, to 
 the jury. We think the learned judge was right in so charging ancf 
 submitting the facts. The land was known in the assessment-books, 
 and in the neighbourhood by the name of Rockwell, the person in 
 whose name it was assessed and sold, and who had been in fact an 
 owner and taxpayer on it for ten years. This fact would necessarily 
 give it a designation as his land, and Mr. Reynolds, or a purchaser 
 from him, would most naturally expect to find it taxed in that name. 
 They could not claim for it would be contrary to all reason that 
 such a designation could mislead them. It was a good designation : 
 for the tax of 1850. was in all probability, assessed, while Rockwell
 
 444 LISTING OF PEfiSONS AND VALUATION. 
 
 was still owner of it; and to continue it in the same name, unless 
 the owner chose to change it to his own, was an every day occur- 
 rence. It was a sufficient designation of the tract, to have corrected 
 any errors induced by the number. It is worthy of note, in this 
 connection, that the number, if correctly given, would have been of 
 little value as a designation, as there were several subdivisions of 
 the tract, all entitled to claim the same number as a designation. 
 
 But the number as given, could not have misled anyone, at all 
 acquainted with or interested in the land. It was in fact an impos- 
 sible one. That tract, 1302, lay entirely in a different district the 
 land in question being situate in the 8th district, and No. 1302 in 
 the 7th; a seated tract, with which E. Kockwell's name had no con- 
 nexion whatever. We attribute, however, to donation numbers, as a 
 designation in assessments, no more virtue than to warrant num- 
 bers. Dunden v. Snodgrass was of this latter kind. The true num- 
 ber of the warrant was 624; it was assessed and sold as No. 18. 
 There being other means of designation in the case, this court held 
 the error in the number of no account. And for the same reason, 
 we so hold in this case. The law was correctly given to the jury, 
 and there is no error in the second, third and fourth assignments. 
 
 On consideration of the whole case we are of opinion that this 
 judgment should be affirmed. 
 
 Judgment affirmed. 
 
 Land office abbreviations are sufficient description. Association v. Wag- 
 oner, 33 Ind. 51. City lots may be described in accordance with city tax 
 plan. Janesville v. Markoe, 18 Wis. 350. But where statute says land must 
 be described by metes and bounds this method must be followed. People 
 v. Cone, 48 Cal. 427. 
 
 BOSWORTH V. DANZIEN. 
 
 Supreme Court of California. April, 1864. 
 25 California 291. 
 
 By the Court, SHAFTER, J. : 
 
 This is an action of ejectment brought to recover the possession 
 of certain lands situate in the city and county of San Francisco. 
 The case was tried by the Court, and the plaintiff appeals from the 
 judgment rendered against him, and from an order denying his 
 motion for a new trial. 
 
 In the description of the premises, as set forth in the complaint,
 
 BOSWOKTH V. DANZIEN. 445 
 
 the initial point and the first two courses therefrom are described 
 as follows: "Commencing at the northeasterly corner of Center and 
 Guerrero streets, running thence easterly on Center street ninety 
 feet; thence at right angles northerly," etc. 
 
 The plaintiff claimed title to the premises by virtue of a tax 
 deed executed to him under the Revenue Act of 1857. When the 
 deed was offered in evidence, it was objected to by the defendants 
 as inadmissible, "because the deed does not describe the land by 
 metes and bounds, and the description is fatally defective in calling 
 for wrong streets, and the lines cannot be made to meet." 
 
 The deed was admitted by the court, subject to the objections; 
 and from the findings, we must conclude that the court in the end 
 excluded the deed as being void upon its face. The error assigned 
 relates to the correctness of that ruling. 
 
 The deed recites that the land purchased by the plaintiff at the 
 tax sale was a part of a larger tract ''assessed, levied upon, and ad- 
 vertised," and then proceeds to describe the part purchased by metes 
 and bounds; and on comparing the description with the description 
 given in the complaint of the premises demanded we find them to 
 agree in every particular. 
 
 The deed also recites the description of the larger tract of land 
 as given in the assessment roll and advertisement. The point of 
 beginning and the first course and distance therefrom, are described 
 as follows: "Lot commencing on the northeasterly corner of Center 
 and Guerrero streets, thence easterly on Corbett street, two hundred 
 feet, thence at right angles northerly," etc. 
 
 It will be observed that the description in the assessment roll be- 
 gins at the northeasterly corner of Center and Guerrero streets and 
 rims thence easterly on Corbett street two hundred feet, and that 
 in the description of the land sold and conveyed, the same line is 
 described as beginning at the same point, running easterly there- 
 from on Center street. 
 
 The Court has found in effect that a line drawn easterly, that is, 
 due east, (1 Johns. 156; 3 Caines, 293,) from the corner named, 
 would run along Center street in fact, and furthermore it is impos- 
 sible that it should be otherwise the corner, the direction of the 
 streets toward the cardinal points, and their subsequent intersection 
 at right angles being given. 
 
 We here assume the true point of the respondent's objection to 
 the validity of the deed to be, that the description of the south line 
 of the tract assessed is contradictory in fa:t, and, not being true
 
 446 LISTING OF PERSONS AND VALUATION. 
 
 to the whole extent of the terms used, that the assessment is utterly 
 void as matter of law. The counsel of the appellant, meeting the 
 case in this aspect of it, seeks to defeat this consequence on the 
 ground that the false call in the description of the property as listed 
 may be rejected as surplusage. 
 
 1. Where, in case of a deed voluntarily executed by the owner 
 of land, it appears upon applying the instrument to its subject mat- 
 ter, the description in it is true in part, but not true in every par- 
 ticular, so much of the description as is false will be rejected, and 
 the instrument will take effect if a sufficient description remains to 
 ascertain its application. Falsa demonstratio non nocet cum de cor- 
 pore constat. Smith v. Galloway, 5 B. & Aid. 43, 51. In such 
 case, evidence of res gestae will be received for the purpose of as- 
 certaining the intention of the parties, and giving to it a complete 
 effect and operation. 
 
 But tax proceedings are in invitum. The land owner intends 
 nothing. The Government, acting after its own methods and 
 through its own agents, seeks to enforce the collection of a tax which 
 it has imposed upon the citizen; and it follows that if a false de- 
 scription in a tax deed or assessment roll can be rejected as sur- 
 plusage, it cannot be for the reason that it is necessary that it should 
 be so dealt with in order that the intention of the parties may be 
 fulfilled. It does not, however, follow that a false call occurring 
 in an assessment roll is to be retained to the entire overthrow of 
 the tax title, because it cannot be rejected for the particular reason 
 above stated. 
 
 It not unfrequently happens that a case arises, not in all respects 
 within the beneficial operation of one rule of law, but which may be 
 manifestly within the saving operation of another, going upon 
 broader conditions. The maxim, "Vt res magis valeat quam pereat," 
 is a canon with reference to which not only contracts and wills are 
 to be construed, but statutes also passed, as they are, without any 
 direct cooperation or assent on the part of the citizen. The spirit 
 of the maxim is, that nothing should be destroyed merely for the 
 sake of destruction. We have not, by our own examination, been 
 able to find any adjudged case in which it has been held that a 
 false call in an assessment roll, advertisement, or tax deed, neces- 
 sarily vitiates a tax title. The rule as given in Tollman v. White, 
 2 N. Y. 66, is as follows : "An assessment of land is fatally de- 
 fective and void if it contains such a falsity in the designation or 
 description of the parcel assessed as might probably mislead th; 1 
 owner, and prevent him from ascertaining by the notice? that his
 
 HERSEY V. BOARD OF SUPERVISORS. 447 
 
 land was to be sold or redeemed. Such mistake or falsity defeats 
 one of the obvious and just purposes of the statute that of giving 
 to the owner an opportunity of preventing the sale by paying the 
 tax." We accept the above decision, not more on the authority of 
 the Court by which it was pronounced, than on our entire convic- 
 tion that it is correct in principle. 
 
 The test, then, to which every false call occurring in the course 
 of tax proceedings is to be subjected is this: Has it probably had 
 the effect to mislead the landowner in relation to the land assessed, 
 advertised and sold? 
 
 In the case at bar, the description in the assessment roll begins at 
 a point fixed with entire precision, and runs therefrom due east 
 two hundred feet. The superadded description of that line "along 
 Corbett street" was not, in our judgment, calculated to mislead 
 the landowner, and for the manifest reason that it was impossible 
 that the call should be true. The call was not only false, but ab- 
 surd, and that, too, in the light of facts appearing on the face of 
 the general description of the corner and line. 
 
 Judgment reversed, and new trial ordered. 
 
 Personal property need not generally be described in an assessment. Its 
 amount is all that need be stated unless a statute provides otherwise. People 
 v. Home Ins. Co., 29 Cal. 536; People v. Holaday, 25 Cal. 305. 
 
 VIII. METHOD OF VALUATION. 
 HERSEY V. BOARD OF SUPERVISORS. 
 
 Supreme Court of Wisconsin. January, 1875. 
 37 Wisconsin 75. 
 
 COLE, J. This is an appeal from an order denying a motion to 
 dissolve a temporary injunction restraining the county treasurer 
 from selling lands for delinquent taxes. The motion to dissolve 
 stated that it would be founded on the original injunction order, 
 complaint and answer on file. On the hearing of the motion, tho 
 plaintiffs were permitted to read, against the objection of the de- 
 fendants, affidavits in support of the allegations of the complaint. 
 
 The complaint alleges, that certain rules were adopted by the as- 
 sessors in 1872, for the assessment of real estate in Barren county,
 
 448 LISTING OF PERSONS AND VALUATION. 
 
 and that the same rules were followed by the assessor and board of 
 review in making the assessment for the year 1873, upon which the 
 tax in question was levied. These rules are as follows: First. 
 Pine on first class driving streams assessed at $2 per M. within the 
 limits of two miles hauling. Second. Pine on such streams of more 
 than two miles hauling at $1.50 per M. Third. Pine on second 
 class driving streams, as Moose Ear and other streams mentioned, at 
 $1.50 per M. within two miles, and $1.00 per M. beyond. Fourth. 
 Pine on fourth class waters, head of Yellow river, north of Bear 
 Lake, at 50 cents per M. Fifth. Lands entered for farm lands 
 (wild) at from $2.50 to $10 per acre, according to locality; and cul- 
 tivated, at $6 per acre. Sixth. Cut lands according to inspectors* 
 reports, at 12^2 cents per acre. 
 
 It sufficiently appears from this averment, as well as from other 
 admissions in the answer, that these rules were made the basis of 
 the assessment for the year 1873; and assuming, as we may well 
 do, that they were adopted with no fraudulent intent, and with no 
 purpose of favoring any owner of real estate, the question then 
 arises, Was the assessment valid which was made in conformity to 
 them? It appears to us that it was not. 
 
 The statute directs the manner in which real estate shall be listed 
 or valued for taxation. "Real property shall be valued by the as- 
 sessor from actual view, at the full value which could ordinarily be 
 obtained therefor at private sale, and which the assessor shall be- 
 lieve the owner, if he desires to sell, would accept in full payment. 
 In determining the value, the assessors shall consider, as to each 
 piece, its advantage or disadvantage of location, quality of soil, 
 quantity and quality of standing timber, water privileges, mines, 
 minerals, quarries, or other valuable deposits known to be available 
 therein, and all buildings, fixed machinery and improvements of 
 every description thereon, and their value." Sec. 16, ch. 130, Laws 
 of 1868. The listing and valuation are the foundation of all the 
 subsequent proceedings; and this provision prescribes the manner 
 in which they shall be made, with the manifest purpose that the 
 tax levied upon each tract shall be relatively according to its real 
 value. The assessor is required to make the valuation from actual 
 view, and he is called upon to exercise his judgment with reference 
 to each tract, its advantage or disadvantage of location, the quality 
 of the soil, the quantity and quality of standing timber; in short; 
 he is to consider all the elements which enter into and constitute 
 its value. These are the plain, obvious rules and principles upon
 
 HERSEY V. BOARD OF SUPERVISORS. 449 
 
 which the statute contemplates that the valuation shall be made, 
 By the rules in question, these statutory principles were utterly ig- 
 nored and disregarded. An arbitrary classification was applied to 
 the real estate. It is conceded that the lands were generally wild, 
 pine lands. The standing pine on what is called first class driving 
 streams was assessed at $2 per M. within the limits of two miles, 
 regardless of the advantage or disadvantage of its location up or 
 down the stream and wholly ignoring the element or quality in the 
 standing timber. In respect to pine on such streams, which had to 
 be hauled more than two miles, the same arbitrary value was affixed, 
 regardless of its quality or location from the source or mouth of 
 the stream. The same remarks apply to the other classification in 
 the rules. The real estate is valued solely with reference to the 
 quantity of pine timber standing upon it, without taking into ac- 
 count the quality of it, its location up or down the stream, or the 
 character of the soil, or those other elements which determine the 
 value of land, and which the statute says the assessor shall consider 
 and regard in making the valuation. That a valuation thus made 
 would necessarily operate unjustly and unequally, seems to us too 
 plain for discussion. True, it is alleged in the answer that it was 
 only practicable to make a fair and equitable valuation of the real 
 estate under these rules, which is equivalent to saying that the law 
 upon the subject cannot be complied with. But if no valuation can 
 be made as the statute requires, we fail to see upon what ground 
 the tax can be sustained. A valuation is essential to lay the founda- 
 tion for the tax; and if no legal valuation was practicable, it fol- 
 lows that any tax based wholly upon an unauthorized valuation 
 would be illegal and void. The allegation is a felo de se. 
 
 But it is said by the counsel for the defendants, that even if the 
 rules above quoted were absolutely followed and strictly pursued by 
 the assessor in making the valuation, yet, if they were honesth 
 adopted as expressive of the judgment of the assessor, there being no 
 question of fraudulent intent, a court of equity would not say the 
 assessment was void. But how can a court of equity pronounce an 
 assessment valid which is in plain violation of law? Real estate 
 must be valued in the manner and upon the principles prescribed 
 by the statute. The assessor may make a mistake in the valuation 
 while honestly attempting to execute the law. Errors of judgment, 
 inequalities in valuation, will intervene in all proceedings of this 
 character. It might not be practicable for the assessor to go over 
 every foot of ground and thus, from "actual view" of every part of 
 a tract, determine its true market value, at the time of the assess- 
 29
 
 450 LISTING OF PERSONS AND VALUATION. 
 
 ment. But there should be an attempt to substantially comply with 
 the law. Here we feel warranted in assuming, upon the admissions 
 in the answer, that the law was disregarded, the assessor adopting 
 for the guidance of his judgment rules which not only departed 
 from the statutory requirements, but which could not fail in their 
 operation to defeat a fair and just valuation. That such must have 
 been the necessary effect of the rules upon the valuation, seems to 
 us perfectly obvious. As remarked by counsel for the plaintiffs, the 
 idea that standing pine, just two miles from a stream, should be as- 
 sessed at $2 per M., though of a poor quality, while excellent tim- 
 ber on an adjoining tract, a little further from the stream, is as- 
 sessed at $1.50 per M., confounds all notions of justice and equality. 
 
 That the assessment made under the rules, and the taxes levied 
 upon the lands of the plaintiffs, were void, and that a court of equity 
 will interfere to restrain the sale, follows from the decisions in 
 Hamilton v. The City of Fond du Lac, 25 Wis. 490, and The Mil- 
 waukee Iron Co. v. The Town of Hubbard, 29 id. 51. Those cases 
 seem to be directly in point upon that position. 
 
 By the Court. The order of the circuit court is affirmed. 
 
 STATE V. JESSE PLATT. 
 
 Supreme Court of New Jersey. June, 185S. 
 2Jf New Jersey Law. 108. 
 
 This was a certiorari, prosecuted by John B. Coles and others, 
 devisees of John B. Coles, deceased, to review and correct the as- 
 sessment of taxes made by the assessors of Jersey City, in the year 
 1851, upon the lands of the prosecutors. 
 
 ELMER, J 
 
 But it is objected that the value placed on this property is 
 imaginary and exorbitant. -There are about three thousand lote, 
 and the value exceeds a million dollars. If rightly assessed as 
 lots, as I think they were, they were of course to be valued as lots, 
 and such was the intention of the charter. The city is rapidly ex- 
 tending, and every improvement made in it tends directly to en- 
 hance the value of the lots, so that in justice they ought to con- 
 tribute their fair proportion of those expenses which make the city 
 desirable as a residence and quicken its growth. If overvalued, the 
 remedy of the owners was by an appeal to the commissioners select-
 
 STATE V. JESSE PLATT. 451 
 
 ed for the purpose of revising the estimate of the assessors, and this 
 remedy they availed themselves of. It is certainly shown that the 
 present income of the property bears no comparison to the interest 
 of the money at which it is valued. But the income is not the cri- 
 terion; and it is not shown that they are valued beyond the true, 
 full, fair value of them, certainly not so far beyond it as to sho\v 
 such partiality and misconduct in the officers as would justify us 
 in holding the assessment to be wholly void. The lots were not val- 
 ued so high as the price at which they are held, and are not value. 1 
 higher than other property in the city in a similar condition. 
 
 Another objection to this taxation is, that when it was made the 
 churches within the limits of the city were not in terms exempted 
 from taxation by the charter, and, although shown to be of the ag- 
 gregate value of one hundred thousand dollars, they were not as- 
 sessed. Meeting houses and school houses, although not formally 
 exempted by the tax laws in force prior to 1851, were seldom if ever 
 assessed in any part of the state. This omission was so obviously 
 proper, and so entirely in accordance with the public sentiment, that 
 it universally prevailed, and was in fact a contemporaneous con- 
 struction of the laws this court would probably have sanctioned, had 
 the question been formally raised. When the new system was adopt- 
 ed, the exemption was for the first time expressly enacted; and al- 
 though not contained in the charter of Jersey City, I do not think 
 the omission to tax the churches such an illegality as ought to ren- 
 der the whole assessment void. 
 
 It would be a novel and dangerous doctrine to hold, that if the 
 assessors happen to omit some property really taxable, the assess- 
 ment is thereby necessarily void, so that no taxes can be collected. 
 There is, perhaps, scarcely a district in the state where this does 
 not happen, to a greater or less extent, almost every year. It is 
 undoubtedly the duty of the assessor to include all the property lia- 
 ble to be taxed; but unless it be in cases involving a palpable and 
 greatly injurious disregard or misconstruction of plain requirements 
 of the law from the necessity of the case, this is a matter which 
 must be left to his own vigilance. In the case of The State v. 
 Branin, this court held that an omission to assess a poll-tax vitiated 
 the whole assessment; but in that case there was not a mere omis- 
 sion to assess some particular individuals or property, there was a 
 flagrant misconstruction of the law, affecting every taxable inhab- 
 itant, very different in its character from the case before us. In 
 the case of Williams v. School District, 21 Pick. 75, the Supreme
 
 452 LISTING OF PERSONS AND VALUATION. 
 
 Court of Massachusetts held that an omission would not invalidate 
 an assessment. The same principle was affirmed in the case of 
 George v. Inhabitants, &c., 6 Mete. 497. 
 
 The only valid objection I find to this assessment is, that the 
 assessors included in it the sum of $2,458.98 for losses and contin- 
 gencies. Fifteen hundred dollars were ordered to be assessed, by 
 the ordinance of the council, for contingent expenses, as by the char- 
 ter they were authorized. But this additional sum is illegal. It 
 must, therefore, be referred to a commissioner to ascertain what is 
 the prosecutor's proportion of this sum, and to that extent the as- 
 sessment must be set aside, and as to all the rest affirmed. 
 
 PEOPLE EX EEL. TEUST CO. V. COLEMAN ET AL. 
 
 Court of Appeals of New York. June, 1891. 
 126 New York, 4SS. 
 
 Appeal from judgment of the General Term of the Supreme 
 Court in the first judicial department, entered upon an order made 
 the first Monday of October, 1890, which affirmed an order of Spe- 
 cial Term dismissing a writ of certiorari to review an assessment 
 of the relator*s capital for the year 1889. 
 
 The relator is a corporation organized under a special act of the 
 legislature of 1864 (Chap. 316, Laws of 1864), doing business as 
 a trust company in the city of New York. On the second Monday 
 in January, 1889, it furnished to the commissioners of taxes and 
 assessment a detailed statement of its assets and liabilities which 
 was duly sworn to, and claimed that all its capital stock and sur- 
 plus, being invested in United States securities, was exempt. The 
 commissioners held that the capital stock, the actual value of which 
 they were to assess, was the shares and they ascertained such value 
 by multiplying the nominal capital by the market price of the shares 
 and deducted therefrom ten per cent of the nominal capital, the 
 assessed value of the real estate and the investments in United States 
 securities. 
 
 FINCH, J. The relator has been assessed upon an "actual value" 
 of its capital stock derived entirely from the market value of its 
 shares. These are selling at the large premium of something over 
 five hundred dollars for each share of one hundred dollars, and the 
 assessors have concededly taken that valuation, or the principal part 
 thereof, as the "actual value" of the company's stock liable to tax-
 
 PEOPLE V. COLEMAN. 453 
 
 ation, instead of its own proved and established value. The relator 
 challenges the assessment, and through all the proceedings has per- 
 sistently raised and pressed the inquiry, not so much as to the mode 
 or manner of ascertaining value, but rather as to what is the precise 
 thing to be valued, whether the capital stock of the company or the 
 capital stock held in shares by the corporators. If these are the 
 same, or, in any sense, equivalents, either might be valued without 
 substantial error, but if they are not such, we must determine which 
 is to be valued before we can solve the problem of how to value it. 
 Now, it is certain that the two things are neither identical nor 
 equivalents. The capital stock of a company is one thing; that of 
 the shareholders is another and a different thing. That of the com- 
 pany is simply its capital, existing in money or property, or both; 
 while that of the shareholders is representative, not merely of that 
 existing and tangible capital, but also of surplus, of dividend earn- 
 ing power, of franchise and the good will of an established and pros- 
 perous business. The capital stock of the company is owned and 
 held by the company in its corporate character; the capital stock of 
 the shareholders they own and hold in different proportions as indi- 
 viduals. The one belongs to the corporation; the other to the cor- 
 porators. The franchise of the company, which may be deemed its 
 business opportunity and capacity, is the property of the corpora- 
 tion, but constitutes no part or element of its capital stock; while 
 the same franchise does enter into and form part, and a very essen- 
 tial part, of the shareholder's capital stock. While the nominal or 
 par value of the capital stock and of the share stock are the same, 
 the actual value is often widely different. The capital stock of the 
 company may be wholly in cash or in property, or both, which may 
 be counted and valued. It may have in addition a surplus, consist- 
 ing of some accumulated and reserved fund, or of undivided profits, 
 or both, but that surplus is no part of the company's capital stock, 
 and, therefore, is not itself capital stock. The capital cannot he 
 divided and distributed; the surplus may be. But that surplus 
 does enter into and form part of the share stock, for that repre- 
 sents and absorbs into its own value surplus as well as capital, and 
 the franchise in addition. So that the property of every company 
 may consist of three separate and distinct things, which are its 
 capital stock, its surplus, its franchise; but these three things, sev- 
 eral in the ownership of the company, are united in the ownership 
 of the shareholders. The share stock covers, embraces, represents 
 all three in their totality, for it is a business photograph of all the 
 corporate possessions and possibilities. A company also may have
 
 454 LISTING OF PERSONS AND VALUATION. 
 
 no surplus, but, on the contrary, a deficiency which works an im- 
 pairment of its capital stock. Its actual value is then less than 
 its nominal or par value, while yet the share stock, strengthened by 
 hope of the future and the support of earnings, may be worth its 
 par, or even more. And thus the two things the company's cap- 
 ital stock and the shareholder's capital stock are essentially and in 
 every material respect different. They differ in their character, in 
 their elements, in their ownership and in their values. How im- 
 portant and vital the difference is, became evident in the effort by 
 the state authorities to tax the property on the national banks. Tha 
 effort failed, and yet the share stock in the ownership of individ- 
 uals was held to be tax-able as against them. The corporation and 
 its property were shielded, but the shareholders and their property 
 were taxed. 
 
 Now some degree of confusion and trouble have come in because 
 these two different things are denominated alike capital stock, mak- 
 ing the expression sometimes ambiguous. It is the important and 
 decisive phrase in the law of 1857, under which the assessment here 
 resisted w.as made, and requires of us to determine at the outset in 
 which sense it was used. The section reads thus: "The capital 
 stock of every company liable to taxation, except such part of it 
 as shall have been excepted in the assessment-roll, or shall have been 
 exempted by law, together with its surplus profits or reserved funds 
 exceeding ten per cent of its capital, after deducting the assessed 
 value of its real estate, and all shares of stock in other corporations 
 actually owned by such company which are taxable upon their capi- 
 tal stock under the laws of this state, shall be assessed at its actual 
 value and taxed in the same manner as the other real and personal 
 estate of the county." 
 
 There are reasons in abundance for the conclusion that by the 
 phrase "capital stock" the statute means not the share stock, but 
 the capital owned by the corporation; the fund required to be paid 
 in and kept intact as the basis of the business enterprise, and th" 
 chief factor in its safety. One ample reason is derived from the 
 fact that the tax is assessed against the corporation and upon its 
 property, and not against the shareholders, and so upon their prop- 
 erty. In theory every tax is charged against some person, natural 
 or artificial, resident or non-resident, known or unknown. It is as- 
 sessed not upon property irrespective of ownership, but against per- 
 sons in respect to their property (23 N. Y. 215), and effects not 
 merely a lien, but also a personal liability. On the assessment-rolls 
 in this case appeared the name of the relator as the person a-
 
 PEOPLE V. COLEMAN. 455 
 
 sessed, and that amount of the tax became a charge against it. Of 
 course, it could only be assessed and taxed in respect to its own 
 property, that which in its corporate character it owned and pos- 
 sessed, and so it follows inevitably that the statute concerns the 
 company's capital stock, that is, its real and actual capital, and not 
 in any respect the share stock which it does not own and whose 
 possessors have not been assessed. 
 
 Another reason is found in those terms of the statute which in- 
 clude and exclude respectively specific kinds or classes of property 
 in the corporate ownership. Thus the assessment is to be laid not 
 merely upon the capital stock of the corporation, but also upon its 
 surplus. Xo such explicit direction was necessary, except upon the 
 assumption that by the words "capital stock" was meant simply 
 "capital," which would not include surplus, and so required that it 
 be subjected by name to the valuation. If the share stock was 
 meant its value would include surplus and make its specification not 
 only needless but confusing. But while the statute includes sur- 
 plus by specific mention, it excludes franchise by omitting it. The 
 omission of franchise is emphasized by the careful inclusion of sur- 
 plus. It is fully and definitely settled that the tax imposed by the 
 statute is not upon the franchise. People v. Commrs. of Taxes, 2 
 Black. 620. But if that be so, it is not upon the share stock, for 
 that represents the value of the corporate franchise as a part of 
 the total of the corporate property. And so, both by what it spe- 
 cifically includes and silently excludes, the statute itself informs us 
 that by "capital stock" it means and intends the company's actual 
 capital paid in and possessed, and not at all or in any sense the 
 share stock. 
 
 The same thing becomes apparent from a study of the whole line 
 of legislation which culminated in the law of 1857. It was traced in 
 detail upon the argument with great industry and wealth of illus- 
 tration. We have verified, it by traveling over the same track, and 
 without taking pains to reproduce it, may assert the general result 
 which it discloses and select out one or more illustrations. The in- 
 vestigation shows that the word "capital" and the phrase "capital 
 stock" are used interchangeably and synonymously, and where the 
 latter phrase occurs there is almost always something in the statute 
 which stamps and labels it as referring to the actual capital of the 
 company. Thus the law of 1825 (Chap. 262), after providing for 
 the taxation of all persons owning or possessing property, proceeds 
 to declare that corporations shall be deemed persons for the pur- 
 poses of the act, and requires them to furnish a statement of the
 
 456 LISTING OF PERSONS AND VALUATION. 
 
 amount of "capital" actually paid in; and then, referring to turn- 
 pike and bridge companies, requires them to state "the amount of 
 capital stock actually paid in or secured to be paid in." Both 
 clauses refer to the same assets or fund, naming it indiscriminately 
 *'capital" and "capital stock." Again, in the law of 1825 (Chap. 
 254) the assessors, after putting the corporation by name on the 
 assessment-roll, are required to add the amount "of its capital stock 
 paid in or secured to be paid in," and to designate how much of it 
 is in real and how much in personal property, and so no doubt is 
 left that by "capital stock" was meant simply the "capital"' pos- 
 sessed in cash or invested in securities or real estate. 
 
 The illustrations might be multiplied and fortified by reference to 
 numerous acts relating to the formation or management of manu- 
 facturing, railroad, business and telegraph companies in which the 
 two forms of expression are used indiscriminately and as convert- 
 ible terms; but I think quite enough has been said to require un- 
 hesitating assent to the proposition that, under the law of 1857, the 
 thing to be taxed is the capital of the company and not the shares 
 of the stockholders. 
 
 Indeed, I should feel bound to apologize for arguing what seems 
 to me so simple and plain a proposition, were it not for the fact 
 that it has been largely ignored by assessors and not always clearly 
 kept in mind by the courts, and but for the further fact that the 
 right to adopt as the taxable valuation the value of the shares, 
 totally disregarding the value of the company's capital, has been 
 asserted in this case, maintained by the courts below, and claimed 
 to be fully justified by very much which we ourselves have decided 
 or said. 
 
 Before examining the cases in detail to see whether they hamper 
 our freedom of judgment upon the question presented, I think it 
 safe and also prudent to assert three things as applicable generally 
 and to all the cases alike. First, this court has never decided, 
 either by a direct determination or by necessary implication, that 
 the law of 1857 authorizes the imposition of a tax upon anything 
 else than the actual capital of the corporations, together with their 
 surplus; second, that the precise question whether the capital of 
 the companies or the share stock of the shareholders forms the basis 
 of valuation and the thing to be assessed, has not been heretofore 
 formally and distinctly presented; and third, that all seemingly 
 erroneous expressions of opinion are corrected at once when they 
 are referred to the permissible conditions under which the value of 
 the share stock in the market may be referred to, not as the thing
 
 PEOPLE V. COLEMAN. 457 
 
 to be valued and assessed, but as an aid or help in discovering the 
 value of the other and different thing which is to be valued and 
 assessed. Keeping these general principles in mind we now recur 
 to the cases. 
 
 The final case to be examined is People ex rel. Knickerbocker 
 Fire Ins. Co. v. Coleman (107 N. Y. 541). It appeared that the 
 relator's stock at par amounted to $210,000 while its share stock 
 was selling below par and for ninety cents on the dollar. But the 
 assessors did not assess the share stock, nor take its value as the 
 test of capital, and so showing no surplus but a deficiency. On the 
 contrary, they went to the Company's own books for information 
 and there found not a deficiency but a surplus, and deducting from 
 the aggregate of capital and surplus the assessed value of the real 
 estate, United States stock and the exempted ten per cent, they 
 found a taxable balance of about $25,000. The company resisted. 
 Their counsel argued that the "assessment should not exceed the 
 market value of the capital stock, less statutory exemptions." 
 (p. 542.) By capital stock he plainly meant the share stock which 
 was selling at ninety. The counsel for the assessors insisted that 
 "the market value of shares of stock of the corporation is not the 
 proper and sole test of the value of the corporate capital." On that 
 issue we sustained the assessment. In so doing we necessarily de- 
 cided that capital, swollen by surplus or diminished by losses, was 
 the subject to be valued and taxed and not the share stock; and 
 that when the actual value of capital and surplus was known and 
 established, in this case by the party's own books, no reference to 
 the value of the shares could be permitted to lessen the valuation. 
 The case, therefore, was correctly decided and in entire accord with 
 the doctrine which I have herein advocated. 
 
 But the opinion contained a statement which has been cited as 
 conclusive by the General Term and also on the argument at our 
 bar, and to which I now refer because it opens the way to the final 
 point of the discussion and to a fact which accounts for and ex- 
 plains most of the references to the value of share stock which are 
 seemingly of a doubtful character. The language was this: "The 
 law does not prescribe how the actual value of the capital stock of 
 a corporation shall be ascertained. That is left to the judgment of 
 the assessors, and in appraising the actual value they have a right 
 to resort to all the tests and measures of value which men ordinarily 
 adopt for business purposes in estimating and measuring values of 
 property. They may take into account the business of the corpora-
 
 458 LISTING OF PERSONS AND VALUATION. 
 
 tion, its property, the value of its actual assets, the amount and na- 
 ture of its present and contingent liabilities, the amount of its divi- 
 dends and the market value of its shares of stock in the hands of 
 individuals." Now I do not desire to withdraw in any degree the 
 concurrence which I yielded to this statement when the case was 
 decided, but it must not be wrested from its application to the facts 
 then before the court and be made to do duty on a different and 
 broader field. The corporation was a fire insurance company with 
 a wide range of contingent liabilities. It had made no statement to 
 the assessors and had left them to their own resources. Where that 
 is so what are the officers to do? Necessarily they must resort to 
 such means as remain and are accessible, and in that emergency 
 they may "look at," "take into account," consider the market value 
 of the shares. That is something very different from assessing the 
 share stock or making its value the conclusive measure of capital 
 and surplus. Such reference is simply the result of necessity, a 
 resort to the poorest means of information and to the most deceptive 
 and treacherous test, because the better means or truer test cannot 
 be obtained. How unreliable the test of share value may be through 
 the effect of gambling, false rumors, scarce money and panics, Judge 
 COMSTOCK describes in his opinion to which I have already re- 
 ferred; and yet there are cases in which it furnishes some aid to 
 the judgment in the absence of accurate knowledge. It is such cases 
 that the courts have had in mind when justifying a reference to the 
 stock market, and not those in which the amount and value of cap- 
 ital and surplus was fully and faithfully disclosed. And so I think 
 the authorities either fairly permit or fully justify the conclusions 
 which I have reached and which may be stated with reasonable ac- 
 curacy thus: First, the subject of valuation and assessment is 
 never the share stock, but always the company's capital and sur- 
 plus. Second, such capital and surplus must be assessed at its own 
 value, and when that is correctly known and ascertained, no other 
 value can be substituted for it. Third, where its amount and value 
 are undisclosed and unknown the assessors may consider the mar- 
 ket value of the share stock and the general condition of the com- 
 pany as indicative of surplus or deficiency and of the probable 
 amount of either. Fourth, they may further resort to such means 
 of information when the amount of capital and surplus is disclosed 
 but the assessors have sufficient reason to disbelieve the statement, 
 and such reason is founded upon facts established by competent 
 proof. 
 
 If these conclusions are correct it will follow that the assessment
 
 PEOPLE V. COLE MAX. 459 
 
 complained of should be canceled. The corporation presented to 
 the. assessors a sworn statement of its assets and liabilities. If it 
 be true, there was nothing subject to assessment. But its truth is 
 not questioned, and there is not the least reason to doubt it. The 
 assessors did not doubt it; they merely deemed it immaterial, and 
 so testified when examined. In other words, knowing with cer- 
 tainty tTie value of one thing, they claimed the right to affix to it 
 the larger value of a different thing. Authorized only to tax 
 against the company its capital and surplus, they assumed the right 
 practically to tax it for the share stock held by individuals. They 
 have not in terms claimed that the share stock is the subject of tax- 
 ation, nor has the counsel who represented them on the argument, 
 but both have maintained and defended what is the exact and com- 
 plete equivalent. The right asserted is a discretion in the assessors 
 at their free will to assess corporations upon and at the value of 
 their capital and surplus, or upon and at the value of the share 
 stock independently of established facts and whenever they please. 
 The law gives them no such discretion. How it has been exercised 
 and how destructively to the rights of the taxpayers may be seen 
 by comparing the action in this case with that in one of the cases 
 which we have reviewed. Where the share stock was selling at 
 ninety, and so below par, the assessors refused to take that value 
 and went to the company's books in search of a larger one, which 
 they found and adopted. Here, where the actual value of capital 
 and surplus is established so that they frankly admit the fact, they 
 calmly disregard it and fly to the larger value of the share stock. 
 The statute has given them no such right. They are not lawless 
 rovers, wandering among corporations at will, but regular officers 
 bound by discipline and controlled by the law, and whose discretion 
 exists within fixed and definite limits. 
 
 It is said, and it is true, that large masses of personal property 
 escape taxation, and the owners are persistent and artful and not 
 over nice in their efforts to avoid a just share of the public bur- 
 dens, and so we should uphold faithful assessors in every attempt to 
 do their full duty. I think this court will not be unmindful of the 
 situation, but before all we must first ascertain and then obey the 
 law. If in that process evils result or are disclosed, the remedy 
 must be sought elsewhere. 
 
 It follows that the judgment and order of the General and of the 
 Special Term should be reversed and the assessment against the re- 
 lator vacated and canceled, without costs. 
 
 All concur, except PECKHAM, J., not voting. 
 
 Judgment reversed.
 
 460 LISTING OF PERSONS AND VALUATION. 
 
 PEOPLE EX REL. MANHATTAN RAILWAY CO. V. BARKER. 
 
 Court of Appeals of New York. June, 1895. 
 146 New York, 304. 
 
 Cross-appeals from order of the General Term of the Supreme 
 Court in the first judicial department, made April 11, 1895, which 
 reversed an order of Special Term vacating and setting aside an 
 assessment of the relator's capital stock for taxation as personal 
 property for the year 1894, and affirmed the proceedings of the com- 
 missioners of taxes and assessments. 
 
 The facts, so far ae material, are stated in the opinion. 
 
 HAIGHT, J. On the 8th day of January, 1894, the commissioners 
 of taxes and assessments of the city of New York assessed the relator, 
 the Manhattan Railway Company, for its personal property at the sum 
 of $30,000,000. In the month of April thereafter the relator filed 
 a statement upon one of the blank forms furnished by the department 
 of taxes and assessments showing its condition on the second Monday 
 of January, 1894. An examination of the treasurer of the company 
 was thereupon had by the commissioners, who then reduced the 
 assessment and fixed it at the sum of $17,860,712. The relator there- 
 upon procured a writ of certiorari directed to the tax commissioners, 
 commanding them to make return of the proceedings had before them 
 to the Special Term of the Supreme Court in order that a review 
 might be had before that court. Upon the returns so made by the 
 commissioners a hearing was had by the court in November, 1894 
 upon which an order was entered vacating the assessment. Upon an 
 appeal to the General Term this order was reversed and the assessment 
 as made reinstated. 
 
 In 1893 some controversy arose over the amount of the assessment 
 of the relator's personal property, which resulted in Mr. Davies, the 
 attorney for the relator, addressing a letter to the commissioners, in 
 which he states that Mr. Gould had authorized him to say that 
 if the assessment did not exceed $12,500,000 they would acquiesce. 
 The statement made in 1893 has some slight variations from that 
 made in 1894, but is substantially the same with the exception that 
 the amount of surplus reported in 1894 is nearly $1,000,000 in excess 
 of that of 1893, so that if the commissioners in fixing the amount of 
 the assessment for 1894 acted upon the statement made in 1893 as com- 
 pared with that made in 1894, and the letter addressed to them by Mr. 
 Davies, they could not well have increased the assessment in 1894 more 
 than $1,000,000 or thereabout?, the amount of the increase of the
 
 MANHATTAN RAILWAY CO. V. BARKER. 461 
 
 surplus earnings of the company. This would have made in round 
 numbers $13,500,000. It was, however, stated upon the argument 
 by their counsel that a very different method was adopted in reaching 
 the amount of the assessment; that in the statement furnished to 
 the commissioners the assessed value of the real estate had been given 
 at $7,323,200, and no mention had been made as to its actual value, 
 and that the commissioners were, therefore, left to judge for them- 
 selves as to the actual value, and that that was arrived at in the fol- 
 lowing manner: 
 
 Capital stock $29,925,200 
 
 Bonded indebtedness 21,163,035 
 
 Surplus 5,326,432 
 
 Gross assets $56.414,667 
 
 DEDUCTIONS. 
 
 Assessed value of real estate $7,323,200 
 
 Stock in other companies 7,075,200 
 
 Mortgaged indebtedness 21,163,035 
 
 10 per cent of the capital stock 2,992,520 
 
 Total . , $38,553,955 $38,553,955 
 
 Which deducted from gross assets, leaves amount 
 
 assessable $17,860,712 
 
 The actual value of the real estate as assessed is thus 
 ascertained from the relator^s statement by deducting 
 from the gross assets 56,414,667 
 
 The amount of its personal property, consist- 
 ing of rolling stock, cash, tools, etc $3,748,315 
 
 Stock in other companies 7,075,200 
 
 $10,823,315 
 
 Leaving as the actual value of the real estate $45,591,352 
 
 We cannot adopt or approve of this method of ascertaining the 
 value of the relator's personal property or of the actual value of its 
 real estate. The method is erroneous and incorrect for various 
 reasons. Under the statute the capital stock of every company liable 
 to taxation, except such part of it as shall have been excepted in the 
 assessment roll or shall have been exempted by law, together with its 
 surplus profits or reserve funds exceeding ten per cent of its capital 
 after deducting the assessed value of its real estate and of shares of 
 stock in other corporations actually owned by such company which 
 are taxable upon their capital stock under the laws of this State, shall 
 be assessed at its actual value and taxed in the same manner as other
 
 462 LISTING OF PERSONS AND VALUATION. 
 
 personal and real estate of the county (Laws of 1857, chap. 45G, sec. 
 3). It is the actual value of its capital stock and not the market 
 value of its share stock that is to be assessed; in other words, it 
 is its actual tangible personal property and not its franchises. Other 
 statutes provide for the taxing of its real estate and franchises. (Peo- 
 ple ex rel The Union Trust Co. v. Coleman, 126 N. Y. 433.) The 
 real property of the relator is located in the city of New York 
 under the eye and subject to the inspection of the commissioners. 
 Under the Revised Statutes they are required to assess it at its just 
 and full value as they would appraise the same in payment of a 
 just debt due from a solvent debtor. (1 R. S. 393, 17.) And 
 under the Consolidation Act for the city of New York it shall be 
 assessed "at the sum for which such property under ordinary cir- 
 cumstances would sell." The value of property is determined by 
 what it can be bought and sold for, and there can be no doubt but 
 that these various expressions used in the statutes all are intended 
 to mean the actual value of the property. The commissioners are 
 sworn officers, and as such, in absence of evidence to the contrary, 
 are presumed to have done their duty. They have assessed the real 
 estate at $7,323,200, and yet, under the method presented by their 
 counsel for ascertaining the value of the relator's personal property, 
 they now estimate the actual value of the real estate to be $45,591,- 
 352. We are aware that it is generally understood that in many 
 localities throughout the State assessors, in violation of their duties, 
 assess the real estate in their localities at a sum less than its actual 
 value, but in the absence of evidence that this has been done by the 
 commissioners of taxes and assessments in the city of New York, we 
 cannot assume that they have so transgressed for the purpose of 
 approving of their work in this case. Real property cannot well be 
 covered up or hid from view. Its value can readily be ascertained. 
 It should be assessed upon estimates directly made as to its value and 
 not upon presumptions figured upon intricate theories. 
 
 Again, the method presented by respondents' counsel involves the 
 presumption that the indebtedness of the corporation represents 
 property to the amount of such indebtedness in addition to that 
 represented by its capital stock. This presumption cannot be 
 indulged. The indebtedness may have been incurred for operating 
 expenses, wages of employees and material used up. It may represent 
 property worn out, decayed or burned up during the existence of 
 the corporation. Presumptions that arise from the earnings of a 
 corporation and those that arise from its indebtedness are quite 
 different. Too many of the railroads of the country are in the
 
 MANHATTAN RAILWAY CO. V. BARKER. 463 
 
 hands of receivers to warrant a judicial presumption that the bonded 
 or other indebtedness of each road represents its actual tangible 
 property in addition to that represented by its capital stock. 
 
 And again, the method proposed necessarily includes the value of 
 the franchises possessed by- the corporation which, as we have seen, 
 cannot properly be included in the assessment under review. 
 
 Whilst the assessment made cannot be sustained, we think that the 
 relator ought not to escape a proper assessment for the property. It 
 is true that the commissioners are not free to capriciously disregard 
 the evidence and emancipate themselves from all restrictions and 
 rules, however fundamental ; they are not bound by statements that 
 are contradicted and which they disbelieve, where good reasons 
 exist for such disbelief. (The People ex rel. Union Trust Co. v. 
 Coleman, supra; The People ex rel. Edison El. Co. v. Barker, 139 
 X. Y. 55-67 ; The People ex rel. Manh. F. Ins. Co. v. The Comrs. of 
 Taxes, 76 id. 64; The People ex rel. Gen. EL Co. v. Barker, 141 id. 
 251; People ex rel. Westchester F. Ins. Co. v. Davenport, 91 id. 574.) 
 The letter of Mr. Davies in 1893 to the effect that if the assessment 
 was made at $12,500,000 the company would acquiesce, having been 
 written for the purpose of a settlement, and an adjustment of the con- 
 troversy then existing, could not properly be adopted by the com- 
 missioners as the basis of an assessment for subsequent years. Still, 
 at the same time, it might well create a suspicion as to the truthfulness 
 of a statement made the year following, showing that so far as the 
 property of the corporation was concerned, aside from its franchises, 
 it was insolvent to the extent of $3,000,000. Aside from this, there 
 exists the fact that the net earnings of the corporation for the year 
 were such as to enable it to pay the interest upon its indebtedness and 
 a dividend upon its thirty millions of capital stock of six per cent 
 and still have a surplus bordering upon a million dollars. These 
 facts fully justified the commissioners in discrediting the statement 
 made to them by the relator. Personal property, unlike real property, 
 may not always be readily found and assessments thereof by assessors 
 are often attended with difficulties. For these reasons more latitude 
 necessarily should be given assessors in ascertaining and determining 
 the amount and value of personal property. Presumptions to some 
 extent should be indulged. For this reason the earnings of a cor- 
 poration may be considered by the assessors, and where they are 
 such as to enable the company to pay its running expenses, neces- 
 sary repairs, interest upon its indebtedness and declare a dividend 
 of six per cent and still have a surplus, it may be assumed that its 
 capital stock remains unimpaired and that there are assets over and
 
 464 LISTING OF PEESONS AND VALUATION. 
 
 above sufficient to pay its outstanding indebtedness. (People ex rel. 
 The Equitable Gas Light Co. v. Barker, 144 N. Y. 94.) 
 
 This method, however, may include the value of the franchises 
 which should be deducted in order to determine the amount of 
 property liable for assessment. Such value has not been given and we 
 are consequently left without the evidence at hand upon which to 
 determine the actual value of the personal property under the pre- 
 sumptions arising from the facts mentioned. It may turn out that 
 the capital stock represents property to the amount thereof in addi- 
 ton to the franchises; that the stock issued to the stockholders of 
 the New York, Metropolitan and Suburban companies represented 
 money actually paid by the stockholders of those companies for real 
 estate and the building construction and equipments of the elevated 
 railroads thereon. Should such be the case, the presumption from 
 the earnings of the company would be permissible, that the capital 
 stock remained unimpaired, representing property over and above 
 the franchises, to the amount thereof, and in addition, sufficient to 
 pay the outstanding indebtedness. Upon this basis the assessable 
 personal property could be determined by adding to the capital stock 
 issued the surplus still of hand not invested in the real and personal 
 property of the company and deducting therefrom the assessable 
 value of the real estate, the stock in other companies and the ten 
 per cent allowed by statute. The result would be as follows : 
 
 Capital stock $29,925,200 
 
 Surplus on hand in cash 1,382,838 
 
 Total $31,308,038 
 
 Real estate $7,323,200 
 
 Stock in other companies 7,075,200 
 
 Ten per cent of capital 2,992,520 
 
 17,390,920 
 
 Amount assessable $13,917,118 
 
 The General Term was of the opinion that this assessment could 
 be sustained upon the authority of The People ex rel. The Equitable 
 Gas Light Co. v. EarTcer (144 N". Y. 94). The difficulty is that in 
 that case the value of the patents and franchise was found to be 
 $500,000, whilst in this case we have no value given to the fran- 
 chises or facts appearing from which such value can be determined. 
 
 The statute provides that upon the return of a writ of certiorari 
 to review an assessment the court shall have power to order the
 
 PEOPLE EX REL. MIXER V. SALOMON. 4t>5 
 
 assessment, if illegal, to be stricken from the roll, or, if erroneous or 
 unequal, to order a re-assessment of the property, etc. (Laws of 
 1880, ch. 269, 4.) The assessment in this case is not illegal; it is 
 merely erroneous. A re-assessment should, therefore, be ordered. 
 
 The order of the General Term should be reversed and that of the 
 Special Term modified so as to vacate the assessment made and 
 order a re-assessment by the commissioners, without costs of this 
 appeal to either party. 
 
 All concur, except O'BeiEN, J., not voting. 
 
 Ordered accordingly. 
 
 IX. EQUALIZATION. 
 PEOPLE EX REL. MINER V. SALOMON. 
 
 Supreme Court of Illinois. January, 1868. 
 46 Illinois, 333. 
 
 Mr. Chief Justice BREESE delivered the opinion of the court. 
 
 This was an application by the Auditor of Public Accounts of 
 this State, for a mandamus against the County Clerk of Cook county, 
 to compel him to extend on the books of the collectors of that county, 
 the equalized tax ordered by the State Board of Equalization. 
 
 By the alternative writ the clerk was commanded, in preparing 
 the books for the collectors of taxes, to provide therein five columns 
 for values, specifying what the first and second columns should con- 
 tain; and that he should extend in separate columns, State, county 
 and all other taxes, against the equalized valuation according to the 
 Auditor's certificate which the clerk had received, in which was set 
 forth the action of the Board of Equalization in respect to Cook 
 county, and in all cases of extension, when the equalized valuation 
 should happen to be fractional, to reject all fractions falling below 
 fifty cents; and that he should extend all fractions of fifty cents or 
 more, as one dollar; and that when the collector's books were com- 
 pleted, he report to the Auditor the valuation as equalized, and the 
 amount of State, county and other taxes charged thereon, and that 
 he make to each collector a certificate of the rate of deduction or 
 addition determined by the Board of Supervisors in the township to 
 which such book should pertain, as required by sections eleven and 
 fifteen, of the act entitled "An act to amend the Revenue Laws and 
 30
 
 466 LISTING OF PERSONS AND VALUATION. 
 
 to establish a State Board for the Equalization of Assessments," 
 approved March 8, 1867, and to do and perform all such acts and 
 things in the premises as the law requires, or appear before the 
 Supreme Court forthwith, to show cause why he refused so to do. 
 
 Accompanying the petition of the Auditor were the proceedings of 
 the Board of Equalization, and this notice, directed to the clerk, and 
 issued from the office of the Auditor, and bearing date October 14th, 
 1867: "Sir: You are hereby notified that the State Board of 
 Equalization, at their session begun on the first Tuesday, being the 
 first day of October, 1867, determined the rate of 24 per cent to be 
 added to the assessed valuation of all property listed for taxation in 
 the County of Cook for the year 1867. You will, therefore, in 
 pursuance of law, proceed to extend the equalized valuation of all 
 property so listed, by increasing the valuation, as equalized by the 
 Board of Supervisors, at the rate of 24 per cent." 
 
 The clerk made a formal and elaborate return to the writ, in 
 which he takes exception to the action of the board in several par- 
 ticulars, but admits he has disregarded the action of the board, and 
 the "request" of the Auditor to extend the taxes upon "the pre- 
 tended" equalization made by that board, for the reason, that the 
 act of the General Assembly, creating the board is unconstitutional 
 and void, because it undertakes to establish a mode of ascertaining 
 the value of property subject to taxation, in violation of the consti- 
 tution, and their proceedings were not in conformity with that act, 
 but so far as related to the County of Cook, were an arbitrary impo- 
 sition of 24 per cent to the assessed value of property in that county, 
 without an}' ascertainment of its real or proportionate value, and he 
 prays the judgment of this court whether he ought to extend such 
 taxes upon such pretended equalization of the property of that 
 county. 
 
 To this return the relator demurred, and there was a joinder in 
 demurrer. 
 
 The small proportion which the actual revenue of the State bore 
 to the real value of the property of the State, under the operation 
 of laws, which, pretending to carry out the behests of the constitution, 
 that all taxes should be levied by valuation, so that every person and 
 corporation should pay a tax in proportion to the value of his or 
 her property, to be ascertained by some person or persons to be elected 
 or 'appointed in such manner a? the general assembly might direct, 
 created widespread alarm and dissatisfaction, rendering it an abso-
 
 PEOPLE EX REL. MIXER V. SALOMON. 467 
 
 lute necessity that some effective mode should be devised, by which 
 this constitutional provision might be carried out in its true spirit. 
 
 The want of such a mode may be well admitted, when the re- 
 turns of the assessors of the different counties are examined, which 
 were made so late as 1867. 
 
 We have extracted from the table accompanying the report of the 
 board of equalization, some startling cases of the gross inequality 
 which prevailed up to the time of the meeting of the board. Reports 
 of the Auditor of Public Accounts, made apparent the same griev- 
 ances, and that body would have been recreant in their duty if they 
 had not provided a proper correction. 
 
 These gross inequalities pervade the table of assessments and that 
 also shows, while the property of the southern and eastern counties 
 in the State is assessed at something near its actual value, that of 
 the northern and western and central counties are far below it. These 
 inequalities permeated the whole system, and this wholesome pro- 
 vision of the constitution rendered practically inoperative; and the 
 same was the case with real property. 
 
 If the legislature have no power, under the constitution, to provide 
 a corrective for these monstrous evils, inflicting injustice upon the 
 individual property owner, and robbing the treasury of the State of 
 its just revenues, then, indeed, it must be conceded it is a feeble instru- 
 ment, and the sooner it is overhauled and its weak places strengthened, 
 the better. 
 
 But these evils, grievous as they are, and even if tenfold greater, 
 furnish no apology to the legislature for a law to correct them, unless 
 such law shall be within their constitutional competency to enact. 
 A? we have said in several cases, the framers of our constitution have 
 taken great pains to affirm the principles of equality and uniformity, 
 as indispensable to all legal taxation, whether general or 'local; and 
 if the act of Feb. 8, 1867, eschews those principles or violates them, 
 it must be condemned, however praiseworthy may have been the object, 
 and however pressing the necessity. The great central idea of the 
 constitution and of its framers, was not a system of revenue based on 
 the valuation of property, but uniformity and equality in the assess- 
 ment of the tax upon it when valued, so that every person should pay 
 a tax in proportion to it. That is the leading idea. Bureau Co. v. C., 
 B. cf- Q. R. R. Co., 44 111. 229. 
 
 Is that object infringed upon by the act in question ? Has not the 
 valuation of property in Cook county been ascertained by persons 
 appointed by the general assembly ? and was not the manner of their
 
 4U8 LISTING OF PERSONS AND VALUATION. 
 
 appointment an open question with the legislature? How have they 
 proposed in their various revenue laws, to execute the powers con- 
 ferred ? Whether they have enacted it wisely or not, is not the ques- 
 tion ; it is a question of power only, and must be tested by the consti- 
 tution alone. 
 
 Keeping in view that the central idea of section 2, article 9, of the 
 constitution is uniformity of taxation, and that exact uniformity is, 
 under no system, practically attainable, an approximation to it is all 
 that can be demanded. 
 
 When property is valued by persons appointed or elected for that 
 purpose, the injunction of the constitution is thus far beyond. Why 
 are values to be ascertained? So that every person and corporation 
 shall pay a tax in proportion to value. That is the sole object of 
 valuation. How is the fact to be ascertained, that, in levying a tax 
 on this valuation, which every person has been required to pay, is 
 in proportion to its ascertained value ? That is the important question. 
 
 While it is admitted that it is not practicable to ascertain the pre- 
 cise value of taxable property, and while the real object is to assess 
 all property by the same standard, and as near its real value as is 
 possible under all circumstances, every means the legislature may 
 adopt to arrive at this standard, if not prohibited by the constitution, 
 must be within their constitutional competency. 
 
 It may be asked, how shall the value be ascertained by the persons 
 appointed or elected for that purpose ? The constitution provides no 
 mode. None of the details are found there. The great principle 
 only is announced, that valuation shall be the basis, in order to 
 produce uniformity in results, all else being left to the wisdom of 
 the legislature. Whatever they may do, whatever mode they may pre- 
 scribe, which does not overleap this boundary, must be legitimate. 
 
 It is seriously contended, that the mode prescribed by the eighth 
 section of the act in question is not within this boundary, but outside 
 of it, and consequently null and void. 
 
 That section is as follows: 
 
 "In equalizing the value of personal property in the several 
 counties said board shall cause to be added together the average values 
 of each kind of domestic animals and enumerated articles in each 
 county, and the sum so obtained as compared with the added general 
 averages of the same items throughout the State, shall be held by 
 said board to indicate the proportion which the whole assessment of 
 personal property in each county bears to, the whole assessment of 
 personal property throughout the State, and said personal property 
 shall be equalized by said board in the manner hereinafter provided
 
 PEOPLE EX REL. MIXER V. SALOMON. 469 
 
 for equalizing real property. Real property shall be equalized by 
 adding to the aggregate assessed vahie thereof in every county in 
 which said board may believe the valuation to be low, such per centum 
 as will raise 1 the same to its proportionate value, and by deducting 
 from the aggregate assessed value thereof in every county in which the 
 said board may believe the valuation to be too high, such per centum 
 as will reduce the same to its proper value. When the relative valua- 
 tions of real and personal property shall have been considered sepa- 
 rately, said board shall combine the results in such manner as may be 
 deemed equitable, and determine a uniform rate per cent, to be added 
 to, or deducted from, both classes of property in each county, which 
 rate per cent, shall in all cases be even and not fractional : Pro- 
 vided, that nothing herein contained shall be construed as interfering 
 in any manner with the laws now in force in regard to the equalization 
 of assessments as between the different townships, by the board of 
 supervisors in counties adopting the township organization.''" 
 
 On this section hinges the argument of respondent's counsel, and 
 rightly so, for by it is developed, fully, the system designed by the 
 legislature for the purpose of approximating and carrying out the 
 dominant idea of uniformity. 
 
 They say this mode of ascertaining the value of taxable property 
 conflicts with the constitution, because it adopts a standard of value 
 as a basis of taxation different from the one prescribed by the con- 
 stitution; and that the general assembly had no power to provide 
 for an equalization of assessments for any other purpose than to ascer- 
 tain and fix the true value of the property assessed. And they say 
 further, that it has no authority to equalize the assessments of the 
 several counties by an arbitrary rule, which must produce great 
 inequalities between the assessment of real and personal property, 
 and which totally disregards the rights and interests of the indi- 
 vidual tax payer, who alone is affected by it. 
 
 This error of the argument is apparent. It proceeds on the assump- 
 tion that a standard of value has been adopted as a basis of taxation, 
 not recognized by the constitution, and* that the legitimate purpose 
 of a board of equalization could only be to ascertain and give the true 
 value, of the property assessed. 
 
 Such, we think, was not the purpose. The true value of property, 
 by no system yet devised by the wit of man, can be exactly ascertained. 
 An approximate value having been returned by assessors, it is the clear 
 object of this section so to equalize the valuations among the several 
 counties of the State as to approximate, not to reach, for that is 
 also impracticable, a perfect, but an attainable degree of uniformity,
 
 470 LISTING OF PERSONS AND VALUATION. 
 
 and thus carry out the great and central requirement of the con- 
 stitution, and this by the application of the doctrine of averages, a 
 doctrine which enters into all kinds of business, into all complicated 
 affairs of life, and which has received the sanction of the learned and 
 the wise of every civilized nation. 
 
 What is the object of this provision in the constitution? The 
 answer is, to raise a revenue for the support of the government. On 
 what shall it be raised? On property. In what manner? By valu- 
 ing the property of the several counties, through the agency of per- 
 sons elected or appointed for that purpose. On what principle must 
 the tax be levied? On the principle of uniformity, by which all the 
 citizens of all the counties shall pay a tax, not in precise proportion 
 to the value of their property, but as nearly so as by the application 
 of just principles to the valuation of it will be most likely to produce 
 the desired result. 
 
 There is nothing in the constitution expressly prohibiting a revi- 
 sion of valuations and assessments, and that principle has been in- 
 corporated into our revenue system by all the revenue laws passed 
 since the adoption of the present constitution. 
 
 In counties adopting township organization, ample provision is 
 made for examining the assessment rolls of the different assessors in 
 the several towns of the county, by the Board of Supervisors of the 
 county, in order to ascertain whether the valuation in any one town 
 or district bears just relation to that of all the other towns and dis- 
 tricts in the county, and that Board is fully authorized to increase 
 or diminish the aggregate valuation of real estate in any town or 
 district, by adding or deducting such sum upon the hundred as may, 
 in their opinion, be necessary to produce a just relation between all 
 the valuations of real estate in the county, but in no instance to re- 
 duce the aggregate valuation of all the towns and districts below the 
 aggregate as made by the assessors. Sec. 15, Sess. Laws 1861, 
 page 243. 
 
 What is this but a board of equalization on a limited scale? It 
 will not be contended that the County Board of Supervisors are per- 
 sons elected or appointed for the purpose of valuing property. Not 
 at all. Yet it has never been questioned that the power thus con- 
 ferred upon it has been legally conferred. It was foreseen at the 
 outset, by the legislature, that in counties having as many assessors 
 as there were towns within it, there would be great discrepancies in 
 the assessments. That common horses, in town A, might be valued at 
 fifty or one hundred per cent., or more, above the same description of 
 horses in town B, and even at a greater disproportion in town C.
 
 PEOPLE V. SA( 1JAMKXTO COUNTY. 471 
 
 What more just and equitable than that power should be reposed some- 
 where to correct this, and by raising up, or dropping down, or mak- 
 ing an average among the several towns, a true valuation might be 
 approximated. The object and purpose of the Board of Equalization 
 is the same, with this difference, that they are required to equalize 
 valuations between the several counties of the State. They are both 
 parts, and very important parts, of our revenue system, which, in- 
 culcating valuation, at the same time does not lose sight of the domi- 
 nant principle of equality and uniformity. The title of the bill is 
 an act to amend the revenue laws. It is a step in the right direc- 
 tion, and although individual cases of hardship and injustice may 
 happen under it, when first put in operation, its object and purposes 
 commending it so much to the respect of the people, such cases will not 
 be received as arguments against the validity of the law, or even its 
 policy. 
 
 We perceive nothing in the act conflicting with section two of 
 article nine of the constitution. Some of its details might, no doubt, 
 be improved, as they will be, by future legislation, but the principle 
 on which it is based commends it to our best judgment. Let a per- 
 emptory mandamus issue. 
 
 WALKER J. dissenting. 
 
 Mandamus awarded. 
 
 PEOPLE V. SACRAMENTO COUNTY. 
 
 Supreme Court of California. July, 1881. 
 59 California 821. 
 
 Application for a writ of certiorari. 
 
 McKixsTEY, J. : 
 
 This proceeding was brought to test the jurisdiction of the Boards 
 of Supervisors of the several counties, through which run railroads 
 operated in more than one county, to raise or lower the assessments 
 placed upon the property of such roads by the State Board of Equali- 
 zation. 
 
 In Section 9, Article xiii of the constitution, it is provided : "The 
 Boards of Supervisors of the several counties of the State shall con- 
 stitute Boards of Equalization for their respective counties, whose 
 duty it shr.-l be to equalize the valuation of the taxable property in 
 the county for the purpose of taxation." Except with reference to 
 its action in respect to the property of railroads operated in more
 
 472 LISTING OF PERSONS AND VALUATION. 
 
 than one county, the duty of the State Board of Equalization, like 
 that of the County Board, is such as its name imports to equalize 
 valuations already made. The State Board equalizes values as be- 
 tween different counties. The County Board equalizes valuations as 
 between different parcels or articles of property in the same county. 
 (Wells Fargo & Co. v. State Board of Equalization, 56 Cal. 194.) 
 The power of the County Boards is limited to the equalization of the 
 valuations of the local Assessors. 
 
 With the exception noted, the State Board of Equalization has no 
 original power of assessment. But it is the manifest intent of the 
 Constitution that the valuation of the railroad property, mentioned 
 in Section 10 of Article xiii, shall be finally fixed and determined by 
 the State Board of Equalization the State Board has the exclusive 
 power to assess and equalize its value. Thus the Constitution fur- 
 nishes a system for the assessment of railroads, operated in more than 
 one county, which is separate and distinct from that provided for the 
 assessment of other property. 
 
 The system is prescribed in Section 10 of Article xiii : "The fran- 
 chises, roadway, roadbed, rails, and rolling stock of all railroads 
 operated in more than one county in this State shall be assessed by 
 the State Board of Equalization, at their actual value, and the same 
 shall be apportioned to the counties, cities and counties, cities, towns, 
 townships, and districts in which such railroads are located, in 
 proportion to the number of miles of railway laid in such counties, 
 cities and counties, cities, towns, townships, and districts." 
 
 It cannot be doubted (if the Constitution is constitutional) that 
 the State Board of Equalization has thus power to assess the rail- 
 road property mentioned in section 10 of article xiii, and to appor- 
 tion the same to the several counties, etc. The portion of the sec- 
 tion quoted is clearly self-executing. We are at a loss to imagine 
 how any statute could make the duty of the State Board any clearer 
 than does this distinct and positive mandate of the Constitution. If 
 any doubt could possibly be built on the words cited, it would be dis- 
 pelled by the first clause of the same section: "All property, except 
 as hereinafter in this section provided, shall be assessed in the county, 
 city and county, town, township or district in which it is situated, 
 in the manner prescribed by law." Thus by the very language of the 
 Constitution, all other but the railroad property mentioned must 
 be assessed by the local assessors, in the manner prescribed by statute ; 
 the railroad property must be assessed in the manner prescribed by 
 the section of the Constitution. 
 
 If legislation is necessary (and it be true that none has been had)
 
 PEOPLE V. SACEAMENTO COUNTY. 473 
 
 to furnish machinery for transmitting to the several counties official 
 notice of the apportionment made by the State Board of Equalization, 
 or, if the statute in that regard has not been complied with by the 
 State Board, or, if the tax cannot be legally collected for want of any 
 appropriate legislation, no one of such defects or errors authorizes 
 the Board of Supervisors to add to or deduct from the valuation of 
 the State Board. Nay, even if it should be admitted (and we do not 
 admit it), that the provision of the State Constitution which at- 
 tempts to confer on the State Board of Equalization the exclusive 
 power of assessing certain property, and of apportioning the tax there- 
 on, is invalid, because in conflict with some provision of the Con- 
 stitution of the United States, this invalidity would not increase the 
 jurisdiction of the Supervisors as a Board of Equalization. In such 
 case the attempted valuation by the State Board would be void. Could 
 the Board of Supervisors make a valid assessment by reducing the 
 amount of the invalid assessment made by the State Board of Equali- 
 zation ? 
 
 The order of respondents purporting to reduce assessments, as set 
 forth in the petition herein, is annulled. 
 
 MYRICK, SHARPSTEIN, Ross, THORNTON, and McKEE, JJ., and 
 MORRISON, C. J., concurred.
 
 CHAPTER XL 
 THE COLLECTION OF THE TAX. 
 
 I. DISTRESS AND SALE. 
 McMILLEN V. ANDERSON. 
 
 Supreme Court of the United States. October, 1877. 
 95 United States, 87. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 
 The defendant, tax collector of the State of Louisiana for the parish 
 of Carroll, seized property of the plaintiff, and was about to sell it for 
 the payment of the license tax of one hundred dollars for which the 
 latter, as a person engaged in business, was liable. In accordance 
 with the laws of Louisiana, plaintiff brought an action in the proper 
 court of the State for the trespass, and in the same action obtained a 
 temporar} injunction against the sale of the property seized. Defend- 
 ant pleaded that the seizure was for taxes due, and that his duty as 
 collector required him to make it. On a full hearing, the court sus- 
 tained the defence, and gave a judgment under the statute against 
 plaintiff and his sureties on the bond for double the amount of the 
 tax, and for costs. 
 
 Plaintiff thereupon took an appeal to the Supreme Court of Louisi- 
 ana, and in his petition for appeal alleged that the law under which 
 the proceedings of defendant were had is void, because it is in con- 
 flict with the Constitutions of Louisiana and of the United States, 
 and, as he now argues, is specifically opposed to the provision of the 
 Fourteenth Amendment of the latter, which declares that no State 
 shall deprive any person of life, liberty, or property without due 
 process of law. 
 
 The judgment of the Supreme Court of Louisiana, to which the 
 present writ of error is directed, affirming that of the inferior court, 
 must be taken as conclusive on all the questions mooted in the record 
 except this one. It must, therefore, be conceded that plaintiff was 
 liable to the tax: that, if the law which authorized the collector to 
 seize the property is valid, his proceedings under it were regular; 
 and that the judgment of the court was sustained by the facts in the 
 case. 
 
 474
 
 McMlLLEN V. ANDEKSON. 4.75 
 
 Looking at the Louisiana statute here assailed the act of March 
 14th, 1873 we feel bound to say, that, if it is void on the ground 
 assumed, the revenue laws of nearly all the States will he found void 
 for the same reason. The mode of assessing taxes in the States by 
 the Federal Government, and by all governments, is necessarily sum- 
 mary, that it may be speedy and effectual. By summary is not meant 
 arbitrary, or unequal, or illegal. It must, under our Constitution, 
 be lawfully done. 
 
 But that does not mean, nor does the phrase "due process of law" 
 mean, by a judicial proceeding. The nation from whom we inherit 
 the phrase "due process of law" has never relied upon the courts of 
 justice for the collection of her taxes, though she passed through a 
 successful revolution in resistance to unlawful taxation. We need 
 not here go into the literature of that constitutional provision, be- 
 cause in any view that can be taken of it the statute under considera- 
 tion does not violate it. It enacts that, when any person shall fail 
 or refuse to pay his license tax, the collector shall give ten days' writ- 
 ten or printed notice to the delinquent requiring its payment; and 
 the manner of giving this notice is fully prescribed. If at the ex- 
 piration of this time the license lc be not fully paid, the tax-collector 
 may, without judicial formality, proceed to seize and sell, after ten 
 days' advertisement, the property" of the delinquent, or so much 
 as may be necessary to pay the tax and costs. 
 
 Another statute declares who is liable to this tax, and fixes the 
 amount of it. The statute here complained of relates only to the 
 manner of its collection. 
 
 Here is a notice that the party is assessed, by the proper officer, 
 for a given sum as a tax of a certain kind, and ten days' time given 
 him to pay it. Is not this a legal mode of proceeding? It seems 
 to be supposed that it is essential to the validity of this tax that 
 the party charged should have been present, or had an opportunity to 
 be present, in some tribunal when he was assessed. But this is not, 
 and never has been, considered necessary to the validity of a tax. 
 And the fact that most of the States now have boards of revisers of 
 tax assessments does not prove that taxes levied without them are 
 void. 
 
 Xor is the person charged with such a tax without legal remedy 
 by the laws of Louisiana. It is probable that in that State, as in 
 others, if compelled to pay the tax by a levy upon his property, he 
 can sue the proper party, and recover back the money as paid under 
 duress, if the tax was illegal. 
 
 But however that may be, it is quite certain that he can, if he is
 
 476 THE COLLECTION OF THE TAX. 
 
 wrongfully taxed, stay the proceeding for its collection by process of 
 injunction. See Fonqua's Code of Practice of Louisiana, arts. 296-309 
 inclusive. The act of 1874 recognizes this right to an injunction 
 and regulates the proceedings when issued to stay the collection of 
 taxes. It declares that they shall be treated by the courts as pre- 
 ferred cases, and imposes a double tax upon the dissolution of the 
 injunction. 
 
 But is is said that this is not due course of law, because the judge 
 granting the injunction is required to take security of the applicant, 
 and that no remedial process can be within the meaning of the Con- 
 stitution which requires such a bond as a condition precedent to its 
 issue. 
 
 It can hardly be necessary to answer an argument which excludes 
 from the definition of due process of law all that numerous class of 
 remedies in which, by the rules of the court or by legislative provi- 
 sions, a party invoking the powers of a court of justice is required 
 to give that security which is necessary to prevent its process from 
 being used to work gross injustice to another. 
 
 Judgment affirmed. 
 
 See also Palmer v. McMahon, 133 U. S. 660, affirming 102 N. Y. 176; 
 and Commonwealth v. Byrne, 20 Grattan (Va.) 165, infra. The legislature 
 may provide for distress and sale of land for non-payment of taxes. See 
 Springer v. United States, 102 U. S. 586, supra. Mr. Justice Swayne in his 
 opinion in this case says: "Why is it not competent for congress to apply 
 to realty as well as personalty the power to distrain and sell when necessary 
 to enforce the payment of a tax? It is only the further legitimate exercise 
 of the same power for the same purpose The prompt pay- 
 ment of taxes is always important to the public welfare. It may be vital 
 to the existence of a government. The idea that every tax-payer is entitled 
 to the delays of litigation is unreason. If the laws here in question involved 
 any wrong or unnecessary harshness, it was for congress, or the people 
 who make congresses, to see that the evil was corrected. The remedy does 
 not lie with the judicial branch of the government."
 
 DONALD V. McKTNNON. 477 
 
 DONALD V. McKINNON. 
 
 Supreme Court of Florida. June, 1880. 
 17 Florida 746. 
 
 Mr. Justice WESTCOTT delivered the opinion of the court. 
 
 The plaintiff claims title through two sources, a deed after sale of 
 land for taxes, and a deed after sale under a judgment rendered by 
 a justice of the peace. 
 
 As to the tax deed. During the trial defendant proved by L. M. 
 Gamble, that he was collector of revenue for the year 1876, that he 
 liad the assessment book for that year and turned it over to his suc- 
 cessor in 1877. "This book" was then offered to show that there was 
 no warrant to it to the collector. Upon objection by the plaintiff, 
 the book was ruled out by the court, and to this action there was 
 an exception 
 
 When, however, the then (that is in 1876) tax collector of revenue, 
 L. M. Gamble, was offered as a witness to prove that there was no 
 \varrant to the assessment roll of 1876, under which this tax sale wa3 
 had, we cannot see that this evidence was properly rejected. The 
 law required that to the assessment roll delivered to the collector of 
 revenue, a warrant under the hand of the assessor should be annexed 
 in the following form to-wit: giving the form, &c. 
 
 Without this warrant "delivered by the officer of the law, designated 
 for that purpose, the collector has no authority to proceed to enforce 
 the payment of taxes." This being omitted, the performance of all the 
 other acts, such as due advertisement, will lay no foundation for the 
 sale of the land (5 Ired., 131; 7 New York, 517; 14 New Hamp., 84; 
 Hilliard on Taxation, 396; Cooley on Taxation, 292; Blackwell on 
 Taxation, 167). The warrant in this proceeding fills the place and 
 performs the functions of a summons. It is the writ to the officer by 
 which he is authorized for public purposes to collect the tax, or in 
 the event of its non-payment to subject the property to sale. For 
 this reason we think that the court erred in rejecting the proposed 
 testimony of Gamble, the person who at the time of the sale was 
 the collector of revenue, and who proposed to produce the assessment 
 roll. 
 
 The judgment is reversed and a new trial awarded. 
 
 In some states no such warrant is required but authority to collect the 
 tax is given by statute on the making out and delivery of the tax list. Tall- 
 man v. Cooke, 43 Iowa 330. In case a warrant is required, a new warrant 
 may be issued where the first one is void for irregularity. Eddy v. Wilson, 
 43 Vt. 362.
 
 478 THE COLLECTION OF THE TAX. 
 
 DANIELS V. NELSON. 
 
 Supreme Court of Vermont. August, 1868. 
 J,l Vermont, 161. 
 
 Replevin for one bay mare. Plea, the general issue, and notice of 
 justification by the defendant, under a rate-bill and warrant, as col- 
 lector of school district No. 6 in Woodbury, and the taking the prop- 
 erty as the property of Luke Daniels, on tax against him. Trial by 
 the court, March term, 1868, Peck, J., presiding. Judgment for 
 the defendant for damages and costs and for return of the property. 
 
 BARRETT, J. In this case the property in question, a mare, was dis- 
 trained upon a tax-warrant in satisfaction of a poll-tax against the 
 plaintiff's father, there being no tax against him on account of said 
 mare or any other property. The court found the legal title of the 
 property to be in the plaintiff, as between him and his father, by a 
 contract made in good faith, and not fraudulent in fact. But the 
 court further found and held that the ostensible ownership and pos- 
 session were so far in the father as to render the mare subject to levy 
 for the tax, even if she would not have been if the plaintiff had taken 
 and kept the exclusive possession and claim of title in himself. The 
 question is thus directly presented, whether the doctrine of fraud 
 in law is applicable, so as to subject the mare to the levy made in 
 this case. 
 
 The several English statutes, the substance and spirit of which are 
 embraced in our own, on the subject of fraudulent conveyances, arc- 
 designed to protect creditors and bona fide purchasers, and the fraud, 
 which gives occasion for those statutes, looks exclusively to such credi- 
 tors and purchasers; and, moreover, they contemplate actual fraud 
 both in intent and act. The doctrine persistently adhered to in Ver- 
 mont, of fraud in law, does not give any additional scope either to 
 the statutory or common law operation of fraud. That doctrine 
 works in subordination to such law, and adopts a particular mode of 
 determining the existence of the vitiating fraud in the given case. 
 In a sense, it propounds a kind of rule of evidence, prescribing what 
 facts proved shall be held to show the existence of such fraud. It 
 says to the party, prove that there was no visible change of substantial, 
 exclusive possession from the vendor to the vendee, and the fraud 
 required by the law to invalidate the sale as against the creditor? 
 and bona fide purchasers, will be established. 
 
 In many states, anrl nt porno periods in England, the lack of such
 
 . 
 
 DANIELS V. NELSON. 47S 
 
 change of possession has not been allowed such conclusive effect, but 
 has constituted matter of circumstantial evidence bearing on the ques- 
 tion of actual fraud. The conclusive effect of that fact in this, and 
 some other of the States, has been allowed and adopted as matter, 
 and on the ground, of policy. 
 
 Now it is obvious that the policy and final cause of the rule can 
 not be predicated of the case in hand. The party to which the tax 
 is owing, is not a creditor. The state, the town, the school district, 
 do not give credit by way of trust and confidence. They make an 
 authoritative and arbitrary exaction, and are armed with all the power 
 of the government for its enforcement out of any and all of the prop- 
 erty of the party taxed including the enticement of the prison walls, 
 in want of the property whereof to get satisfaction. In Johnson v. 
 Howard and Trustee (41 Vermont 122), it was held that town taxes 
 could not be deducted in diminution of the liability of the town as 
 trustee of the defendant, under section 52 of chapter 34 of the Gen- 
 eral Statutes. 
 
 In the present case, as before remarked, the tax was not on account 
 of any property. It was only a poll-i&x. that fact indicating that, 
 likely enough, not property, but only the person of the party taxed, 
 might be reached by warrant for its compulsory collection. 
 
 As the present case does not fall within the reason of the rule, 
 and as no precedent is shown for applying the rule to such a case, 
 we see no legal ground or reason for subjecting the plaintiff's prop- 
 erty to the compulsory payment of his father's poll-tax. No party 
 in interest has been misled. No party in interest could' be misled 
 in such a case, by such possession and use of the property by the 
 plaintiff's father as were shown in this case. 
 
 The fact that the defendant levied on it because of such possession 
 and use, is no element in the law of the subject. It was an experi- 
 ment on his part to get the tax satisfied. What gives potency to the 
 lack of change of possession, is its tendency to induce false credit in 
 the creation of claims against the former owner, who still continues 
 in possession, not that it may induce a party to levy final process 
 upon it in satisfaction of his claim. The case in this respect bears a 
 close analogy to one feature of Turner v. Waldo, 40 Vt. 51. 
 
 The judgment is reversed, and judgment for the plaintiff for nomi- 
 nal damages and his costs.
 
 480 THE COLLECTION OF THE TAX. 
 
 SHELDON V. VAN BUSKIRK. 
 
 Court of Appeals of New York. October, 1849. 
 2 New York, 473. 
 
 John Sheldon sued Lawrence Van Buskirk in a justice's court of 
 the county of Cortland, in trespass for entering his close and taking 
 and selling a number of sheep. The defendant was collector of the 
 town of Preble, in that county, and justified under a warrant held bv 
 him for the collection of a tax against Thomas Sheldon, who was 
 the plaintiff's son and resided on the same farm with him. 
 
 The jury found a verdict for the defendant on which the justice 
 rendered judgment. The county court of Cortland county, on cer- 
 tiorari, reversed the judgment of the justice, and the supreme court 
 sitting in the sixth district, on error brought, reversed the judgment 
 of the common pleas, and affirmed that of the justice. John Shel- 
 don then brought error to this court. 
 
 RUGGLES, J. Van Buskirk, the collector, who was the defendant in 
 the justice's court, was bound to prove on the trial, for the purpose 
 of justifying himself in levying on and selling the property in ques- 
 tion, that he acted under a lawful warrant issued by persons clothed 
 
 with competent authority for that purpose The 
 
 warrant was in point of form substantially in pursuance of the 
 statute, and was made by persons actually having lawful authority to 
 make and issue it. 
 
 Another point made by the plaintiff is, that the collector should 
 have produced not only the warrant but the adjudication, or pro- 
 ceedings of the supervisors in the nature of an adjudication, by which 
 the tax was laid, the collector having sold the goods of John Sheldon 
 
 to satisfy the tax against Thomas Sheldon Ever 
 
 since the case of Savacool v. Bougliton, 5 Wend. 170, a ministerial 
 officer is protected in the execution of process regular on its face, 
 and coming from a court or body of men having jurisdiction of the 
 subject matter. Where an officer who has seized property by virtue 
 of an execution, is sued by the defendant in the execution for taking 
 the property, the officer is never compelled to produce the judgment 
 to justify the taking. The execution alone protects him. But if the 
 officer is sued by A. for taking his property under color of an execu- 
 tion against B., the question to be tried is whether the property when 
 taken belonged to A. or to B, Tf it belonged to A., the execution,
 
 BRACKETT .V. VISING. 481 
 
 with or without the judgment, is no protection, for it does not com- 
 mand the officer to take A.'s property. But if A. claims title to the 
 property by virtue of a sale from B. to him, which is alleged to be 
 fraudulent against B.'s judgment creditors, then it becomes necessary 
 for the officer to produce the judgment on which the execution issued 
 against B. ; but this is for the purpose of proving, in connection with 
 other testimony, that the pretended sale from B. to A. was fraudu- 
 lent and void, and that the property therefore still belongs to B. and 
 not to A. The judgment in such case is given in evidence, because it 
 affects the title to the property in question, and not because it is for 
 any other purpose necessary to protect the officer. 
 
 In the present case nothing is necessary for the protection of the 
 officer except the warrant. John Sheldon does not claim title to the 
 property in question from Thomas; and if he did it would make no 
 difference. The collector is authorized by the statute (1 R. S. 387, 
 2,) to sell not only the goods and chattels of the party taxed, "but 
 any goods and chattels in his possession, and no claim of property 
 made by any other person shall be available to prevent a sale." The 
 jury found by their verdict that the property sold by the collector 
 either belonged to or was in the possession of Thomas Sheldon. The 
 defendant therefore had the right to sell. 
 
 The judgment of the supreme court must therefore be affirmed, 
 with the costs of the appeal, to be paid by the appellant. 
 
 Judgment affirmed. 
 
 BRACKETT V. VINING. 
 
 Supreme Judicial Court of Maine. 1860. 
 49 Maine 356. 
 
 Trespass. From the report of the evidence, offered at the trial, it 
 appears that the plaintiff was collector of a school district tax, and, by 
 virtue of his warrant, seized a horse as the property of one Lord, who 
 refused to pay his assessed proportion of the tax. The property was 
 taken by the plaintiff on the 27th day of October, 1859; and on the 
 day following, he gave public notice for its sale on the third day of 
 November, on which day, and before the hour appointed for the sale, 
 the defendant, as a deputy sheriff, having a writ of replevin in favor 
 of said! Lord, took the horse from the plaintiff's possession; where- 
 upon, this action was commenced. 
 31
 
 482 THE COLLECTION Of THE TAX. 
 
 At Nisi Prius, APPLETON, J., presiding, questions were raised by 
 the counsel of the defendant, involving the legality of the tax, and 
 of the proceedings of the plaintiff under his warrant. For the pur- 
 pose of presenting the questions to the full Court, the presiding judge 
 overruled the objections, and a verdict was rendered for the plain- 
 tiff. The defendant excepted. 
 
 At the argument on the exceptions, the counsel of the defendant, D. 
 D. Stewart, submitted the case upon the point, that, by the terms of 
 the warrant and by the statute, the property should have been sold at 
 the expiration of fouc days after its seizure. After that time, the 
 plaintiff could not legally sell. The keeping of the horse seven days, 
 at least before the day of sale, was an unauthorized act, and the plain- 
 tiff thereby became a trespasser ab initio. 
 
 GOODENOW, J. The plaintiff did not comply with the directions 
 of the warrant, by virtue of which he took the property in contro- 
 versy, nor with the requirements of the statute relating to the sale 
 of the property so taken. The warrant, therefore, is insufficient to 
 protect him. He kept the property too long beyond the expiration 
 of the time, when it should have been sold and, by so doing, must be 
 regarded as a trespasser ab initio. It is unnecessary to consider the 
 alleged illegality of the proceedings in the assessment of the tax. 
 The exceptions must be sustained, verdict set aside, and a new trial 
 granted. 
 
 TENNEY, C. J., KICE, CUTTING, MAY and DAVIS, JJ., concurred. 
 
 II. LIENS AND FORFEITURES. 
 CONE V. WILSON AND ANOTHER. 
 
 Supreme Court of Indiana. May, 1860. 
 14 Indiana 
 
 PERKINS, J. James Goodnow, on the first day of January, 1858, 
 was a resident of Decatur county, Indiana, and the owner of real 
 estate to the value of 10,000 dollars, and of personal of the value of 
 2,000 dollars. On the aggregate amount of this property, there wab 
 assessed, for the year above named, a tax of 90 dollars. 
 
 On the 19th day of November, 1858, Goodnow assigned all of said 
 property to Forsyth and Wilson, in trust for the payment of specified 
 debts.
 
 CONE V. WILSON AND ANOTHER. 483 
 
 On the loth day of January, 1859, Goodnow removed from Deca- 
 tur county. Prior to May, 1859, all of said real estate had been con- 
 veyed to purchasers. In that month, the treasurer of Decatur county 
 seized, for the payment of said tax against Goodnow one hundred 
 cords of wood, a part of the property of said Goodnow assigned to 
 said trustees as aforesaid, and which had not been removed from off 
 the premises on which it was when the assignment was made; and 
 the question is, was that wood liable to the seizure? 
 
 The personal property of a tax-payer is the primary fund out of 
 which all the taxes assessed against him upon poll, personal, and real 
 estate, are to be collected, so long as it may be found within the 
 county. 1 R. S. p. 130, 96, 101. 
 
 The aggregate amount of these taxes is a lien upon all the real 
 estate of the tax-payer within the county, and no part of such real 
 estate is discharged from the lien till the entire amount of tax is 
 paid: though the application of a part payment to a particular piece 
 or portion of such real estate, will relieve such piece or portion from 
 liability to sale till the remaining portions are exhausted by sale. 
 1 R. S. p. 132, 111, 112, 114. 
 
 The lien upon the real estate attaches on the first of January, 
 annually, Id. 112 (1). 
 
 Section 113, on the same page of the volume cited, reads as follows: 
 
 "All the property, both real and personal, situate in any county, 
 shall be liable to the payment of all taxes, penalties, interest, and 
 costs charged to the owner thereof, in such county; and no partial 
 payment of any such taxes, penalties, interest, or costs, shall dis- 
 charge or release any part or portion of such property, until the 
 whole be paid; which lien shall in no wise be affected or destroyed 
 by any sale or transfer of any such personal property." 
 
 This section plainly implied a lien upon personal property for all 
 taxes; but it does not fix the time when it shall commence. As be- 
 tween the state and the owner at the time of the assessment, it un- 
 doubtedly commences as soon as the duplicate is issued to the treas- 
 urer. See 1 R. S. pp. 129, 131. 
 
 An execution is a lien upon the defendant's property, as against 
 all persons, from its delivery to the officer. 2 R. S. p. 131. Yet the 
 officer holding it, should first call upon the defendant for payment 
 before he levies upon property. Perk. Pr., p. 380. 
 
 The treasurer must do so, as to taxes, before he levies or seizes 
 property by virtue of the duplicate. 1 R. S. pp. 129, 130. 
 
 And we do not think the mere assignment of property to trustees 
 for the payment of debts constitutes such a transfer of it as will divest
 
 484 THE COLLECTION OF THE TAX. 
 
 the lien of the state upon the property against the tax-payer, however 
 it might be in case of a transfer to an absolute purchaser, in good 
 faith, for a valuable consideration. 
 
 Again, it does not appear that the possession of the wood seized 
 in this case, had ever been delivered to the assignees, nor that the deed 
 of assignment had been recorded. 
 
 We leave the general question as to the lien of taxes upon per- 
 sonal property under any and all circumstances, undecided. 
 
 Per Curiam. The judgment is reversed with costs. Cause re- 
 manded, &c. 
 
 HENDERSON'S DISTILLED SPIRITS. 
 
 Supreme Court of the United States. December, 1871. 
 14 Wallace 44- 
 
 Mr. Justice CLIFFORD delivered the opinion of the court. 
 
 Distilled spirits, upon which no tax had been paid according to 
 law, were, by the thirty-second section of the act of the thirteenth of 
 July, 1866, subject to a tax of two dollars on each and every proof 
 gallon, to be paid by the distiller, owner, or any person having pos- 
 session thereof, and the same section provided that the tax shall be 
 a lien on the spirits distilled, and on the distillery used for distilling 
 the same, with the stills, vessels, fixtures, and tools therein, &c. (14 
 Stat. at Large 157). Express provision is also made by the four- 
 teenth section of that act, that all goods or commodities, for or in 
 respect whereof any tax is or shall be imposed, or any materials, 
 utensils, or vessels proper or intended to be made use of for or in 
 the making of such goods or commodities, in case they shall be re- 
 moved or shall be deposited or concealed in any place with intent to 
 defraud the United States of such tax, or any part thereof, shall be 
 forfeited. (Ib. 151) 
 
 Regular seizure of the one hundred barrels of distilled spirits in 
 question was made on the first day of September, 1868, by the col- 
 lector of the district, as alleged in the information, and the record 
 shows that the information was duly filed by the district attorney 
 on the seventh of the same month in the District Court of the United 
 States for the district where the seizure was made. Being a seizure 
 on land, the claimant was entitled to a trial by jury, but he ap- 
 peared and the parties entered into a stipulation waiving a jury and 
 submitted the case to the court upon an agreed statement of facts, as
 
 HENDERSON'S DISTILLED SPIRITS. 485 
 
 they had a right to do, even before any legislative provision was en- 
 acted for waiving a jury by a written stipulation 
 
 Pursuant to that stipulation the parties were heard, and the District 
 Court dismissed the information and rendered judgment for the re- 
 spondent. Exceptions were duly taken by the district attorney and 
 he sued out a writ of error and removed the cause into the Circuit 
 Court, where the judgment rendered by the District Court was 
 affirmed, and the United States thereupon sued out a writ of error to 
 the Circuit Court and removed the cause into this court for re-exami- 
 nation. 
 
 Six articles, each charging a forfeiture of the 
 
 spirits in question, are contained in the information, but in the view 
 of the case taken by the court it will only be necessary to examine 
 the fourth in the series 
 
 Four material ingredients are involved in the charge contained in 
 the fourth article of the information: (1) That the spirits were 
 manufactured at some place within the United States, between the 
 day therein named and the date of the seizure. (2) That the spirits 
 were then and there goods and commodities on which a tax was im- 
 posed by some provision of law then in force. (3) That the spirits 
 were removed from the place where distilled with intent to defraud 
 the United States of such tax. (4) That the tax was unpaid at 
 the time the spirits were so removed, with such fraudulent intent. 
 
 Beyond all doubt the admission that the fourth article is true i a 
 conclusive admission that each and every one of the well-pleaded alle- 
 gations which it contains are also true, which, standing alone, would 
 certainly be a concession on the record that the property is subject 
 to forfeiture, unless it can be shown that the fourth article in the 
 information is insufficient in law to warrant a judgment in favor of 
 the United States. 
 
 Viewed in that light, as the admission must be, the next question is 
 whether the statement appended to the admission is sufficient to save 
 the property from condemnation in the possession of the defendant. 
 Properly analyzed the statement appended to the admission contains 
 two averments in avoidance of the consequences which would other- 
 wise follow from the admitted acts of the antecedent owner: (1.) 
 That the defendant paid the tax subsequent to the removal of the 
 spirits from the distillery and before they were removed from the 
 bonded ware-house and before the seizure by the collector. (2.) That 
 he was a bona fide and innocent purchaser, withoiit notice that the 
 spirits were forfeited a? alleged in that article of the information.
 
 486 THE COLLECTION OF THE TAX. 
 
 Where the forfeiture is made absolute by statute the decree of con- 
 demnation when entered relates back to the time of the commission of 
 the wrongful acts, and takes date from the wrongful acts and not from 
 the date of the sentence or decree. (Koberts v. Witherall, 1 Salkeld 
 223 ; Eobert v. Witherhead, 12 Modern, 92 ; United States v. Bags of 
 Coffee, 8 Cranch 398; The Brigantine Mars, Ib. 417; Gelston v. 
 Hoyt, 3 Wheaton, 311; Caldwell v. United States, 8 Howard 381; 
 United States v. Grundy, 3 Cranch 338; Wood v. United States, 16 
 Peters, 342; Clifton v. United States, 4 Howard, 248). Subsequent 
 payment of the duties, therefore, is no defence to an information for 
 a forfeiture founded upon antecedent wrongful acts, as the effect of 
 such wrongful acts, where the forfeiture is made absolute by statute, 
 is to divest the owner of all property in the goods seized and to vest 
 the title to the same in the United States, in case a prosecution en- 
 sues, and a decree of condemnation follows, as the decree of con- 
 demnation when entered by a court of competent jurisdiction relates 
 back to the date of the wrongful acts as alleged and proved at the 
 trial or in the hearing of the cause. (Fountain v. Ins. Co., 11 John- 
 son, 293; Kennedy v. Strong, 14 Id. 128). Repeated decisions of 
 this court have established that rule in all cases where the forfeiture 
 is made absolute by the act of Congress, and it necessarily follows 
 that neither the subsequent payment of the duties nor the fact that 
 the defendant is an innocent purchaser, without notice of the wrong- 
 ful acts of the antecedent owner, constitutes any defence to the charge 
 contained in the fourth article of the information. (Wilkins v. Des- 
 pard, 5 Term, 112.) Many such adjudged cases are to be found 
 in the reported decisions of this court, and it must be admitted that 
 they establish the rule beyond all doubt, that the forfeiture becomes 
 absolute at the commission of the prohibited acts, and that the title 
 from that moment vests in the United States in all cases where the 
 statute in terms denounces the forfeiture of the property as a penalty 
 for a violation of law, without giving any alternative remedy, or pre- 
 scribing any substitute for the forfeiture, or allowing any exceptions 
 to its enforcement, or employing in the enactment any language show- 
 ing a different intent; and that in all such cases it is not in the power 
 of the offender or former owner to defeat the forfeiture by any sub- 
 sequent transfer of the property even to a lona fide purchaser for 
 value without notice of the wrongful acts done and committed by the 
 former owner. Established as that rule has been by the decisions of 
 this court for more than half a century, it is insisted that it should be 
 applied in the case before the court, and it is difficult to see any 
 reason for rejecting the proposition, as the words of the act under
 
 HENDERSON'S DISTILLED SPIRITS. 487 
 
 which the fourth article of the information is drawn denounce the 
 forfeiture of the property in terms as absolute and unqualified as any 
 which can be chosen in our language (United States v. Bags of Coffee, 
 8 Cranch 398; United States v. Grundy, 3 Id. 338) 
 
 Concede all that and it is clear that the United States are entitled 
 to judgment, if it be true that the forfeiture relates back to the date 
 
 of the wrongful acts charged in the information 
 
 Nothing can be more certain in legal investigation than that the 
 decree must have been for the United States if the claimant had de- 
 murred to the fourth article of the information, unless it can be held 
 that the act of Congress denouncing the forfeiture is unconstitutional, 
 as the article in question embodies the exact language of that provi- 
 sion, and it is equally certain that a motion in arrest of judgment 
 would also have been unavailing for the same reason, and also be- 
 cause the validity of the act of Congress is beyond all doubt. 
 
 Congress possesses the power to levy taxes, duties, imposts, and ex- 
 cises, and it is as clear that Congress may enact penalties and 
 forfeitures for the violation of such laws as it is that Congress may 
 levy the taxes or duties or pass laws for their collection, safe-keeping, 
 and disbursement. 
 
 Tested by the charge, as made in that article, and the admission ap- 
 plicable to it, as exhibited in the agreed statement, as the question 
 must be, and it is clear that the spirits may have been removed else- 
 where than to a bonded warehouse before they were placed in that 
 depository by the owner and distiller. Such certainly would be the 
 legal conclusion if the defendant had demurred to the information, 
 and the court is of the opinion that the same conclusion must follow 
 from the admission that the fourth article of the information is true, 
 as the admission is expressed in the agreed statement. 
 
 Henderson, the claimant, purchased the spirits while they were in 
 the bonded warehouse and after they had been deposited therein by 
 the owner of the distillery where the spirits were manufactured, and 
 having made the purchase without notice that any fraud had been 
 practiced by the distiller, and having paid the tax before the spirits 
 were removed from the bonded warehouse, it is insisted by his coun- 
 sel, in every possible form of argument, that his title is perfect and 
 that the spirits are not liable to forfeiture, but the decisive answer to 
 all that is the one already given, that the forfeiture relates back to 
 the unlawful or wrongful acts of the antecedent owner, and that lie 
 cannot by any subsequent transfer of the property defeat the title 
 of the United States, as settled by a series of decisions which, if
 
 488 THE COLLECTION OF THE TAX. 
 
 traced to their source, have their origin in the early history of the 
 common law. (4 Bacon's -Abridgment, 346; Plowden, 488, b. Co. 
 Litt. 25; 1 Chitty's Criminal Law, 727.) 
 
 Eules of decision of such long standing and so necessary to pro- 
 tect the public revenue cannot be changed, nor can it be admitted 
 that the charge contained in the fourth article of the information 
 may not be sustained, even if it appears that the only removal of 
 the spirits made by the distiller was to the bonded warehouse, as 
 assumed in argument by counsel for the defendant. (Clarke v. In- 
 surance Co., 1 Story, 109). 
 
 Unquestionably a removal of distilled spirits from the place where 
 distilled to such a depository, if made to secure the payment of the 
 tax, is lawful, but it is equally clear that if it is made with intent 
 to defraud the United States of the tax it is an unlawful act, and 
 subjects the spirits to forfeiture. 
 
 Grant that the removal was rightful, as assumed by the circuit 
 judge, and the consideration which he adopted would follow, but 
 it cannot be assumed in this case that the removal was rightful, as 
 the charge in the fourth article of the information is that it was 
 made with intent to defraud the United States of the tax, and the 
 admission in the agreed statement is that the fourth article of the 
 information is true, which shows as fully as it can be shown that 
 the United States are entitled to a decree of condemnation, unless 
 it can be established that the fraudulent intent there charged could 
 not under any circumstances be carried into effect by such a removal 
 as that alleged in the fourth article of the information and ad- 
 mitted in the agreed statement. 
 
 Cases have arisen, as the records of this court show, where the re- 
 moval to the bonded warehouse was made as a part of a preconcerted 
 arrangement with other parties to avoid the payment of the tax, and 
 it would not be difficult to suppose other cases where the removal of 
 the spirits from the place where distilled to the bonded warehouse 
 would be a necessary part of a well-devised scheme to defraud the 
 United States by delivering the spirits to purchasers without the pay- 
 ment of the duties. (Distilled Spirits, 11 Wallace, 364). 
 
 
 
 Spirits placed in such a depository sell more readily than before 
 they were removed, because they are regarded as less likely to be 
 subject to forfeiture than while they remained in the distillery, but 
 it is clear that the theory that an intent to defraud the United States 
 cannot be predicated of a removal of spirits from the place where
 
 ALBANY SKEWING CO. V. MERIDEN. 489 
 
 distilled to a bonded warehouse is an erroneous theory, as it is mani- 
 fest that the dishonest distiller, if he can obtain the assistance of the 
 inspector, storekeeper, or collector, as a partner or agent, will find 
 such removal an essential step in almost every scheme which he may 
 devise to accomplish his wicked designs. 
 
 Viewed in any light, therefore, the court is of opinion that the 
 judgment of the Circuit Court is erroneous. 
 
 Questions are also presented in the record under the fifth and 
 sixth articles of the information, but the court having come to the 
 conclusion that the United States are entitled to judgment upon the 
 fourth article of the information, do not deem it necessary to ex- 
 pres= any opinion as to the other questions. 
 
 Judgment reversed and the cause remanded with instructions to 
 render Judgment for the United States. 
 
 Mr. Justice FIELD, with whom concurred the CHIEF JUSTICE and 
 Mr. Justice MILLER, dissenting. 
 
 ALBANY BREWING CO. V. MERIDEN. 
 
 Supreme Court of Errors of Connecticut. June, 1880. 
 48 Connecticut 243. 
 
 Bill in equity, to set aside or postpone two tax liens; brought to 
 the Court of Common Pleas for New Haven County. Facts found 
 and case reserved for advice. The case is fully stated in the opinion. 
 
 PABDEE, J. This is a bill in equity; in it the petitioners ask the 
 Court of Common Pleas for New Haven County either to declare 
 that certain tax liens recorded by the town of Meriden against a 
 piece of land therein belonging to them are illegal and void, or, if 
 legal, that they are to be postponed to their mortagage title. 
 
 In June, 1874, John Brady and Hugh Grogan, then owning the 
 lot, mortgaged it to Moriarty and Abell of New Haven; in Septem- 
 ber, 1876, Brady conveyed his interest to Grogan; in March, 1877, 
 the latter conveyed it to his assignee in bankruptcy, who sold it at 
 public auction on July 27, 1877, to C. C. Herbert, who purchased 
 it as agent for the petitioners; the latter subsequently bought the 
 mortgage. 
 
 At the public sale the assignee gave notice in hearing of Herbert, 
 that the taxes hereinafter mentioned were an incumbrance upon the 
 property, and he accepted a deed in which they were specified as such.
 
 490 THE COLLECTION OF THE TAX. 
 
 During the years 1874-5-6, Brady and Grogan were the joint owners 
 of this and four separate pieces of land in the town of Meriden, also 
 of personal property valued at about $1,000. In each of those years 
 they made and delivered to the assessors a list of their property for 
 purposes of taxation, in each of which they made one item of their 
 separate pieces of land and named one sum as the value of all. If 
 the taxpayer chooses to list and value separate pieces of land as one, 
 and thus invite an assessment thereon as one, and the assessors accept 
 the list and accede to the request, it is not for him nor for any grantee 
 of his to complain after all opportunity for separate assessment has 
 passed. 
 
 Up to the time of his bankruptcy Grogan was in possession of per- 
 sonal property sufficient to pay these taxes; during a portion of the 
 time prior to October, 1877, and during all of the time since, Brady 
 has been in possession of personal property sufficient to pay them. 
 The collector demanded payment from each, but having no knowledge 
 of the possession of personal property by either, no steps were taken 
 to enforce or secure payment other than the filing of notice of a lien. 
 
 The tax upon the list of 1874 became payable on April 20th, 1875 ; 
 and the tax upon the list of 1875 on April 21st, 1876. Upon April 
 19th, 1876, the selectmen of Meriden recorded a lien against the lot 
 for the first, and upon April 20th, 1877, another for the last of 
 these taxes. These were assessed upon all of the estate, real 
 and personal, of Brady and Grogan. The liens were filed under the 
 statute (Gen. Stats., p. 163, sees. 15 and 16,) which provides that 
 "real estate, owned by any person in fee or for life or for a term 
 of years, by gift or by devise and not by contract, shall stand charged 
 with his lawful taxes in preference to any other lien, and may be sold 
 for the same and costs of collection within one year after the taxes 
 become due, notwithstanding any transfer thereof, or any levy of 
 attachment or execution thereon; and shall after the expiration of 
 such year, and before any such transfer or levy, remain liable for the 
 payment of such taxes and costs until paid ; but no real estate so trans- 
 ferred or levied upon shall be sold for the payment of any taxes laid 
 upon a list made after such transfer or levy, nor shall any real estate, 
 legally transferred, attached or taken by execution, be sold for taxes 
 when other estate can be found sufficient to pay them and the legal 
 costs." . . . "The selectmen of any town may continue any tax 
 lien upon any real estate therein for not more than ten years after 
 the tax becomes payable, by recording in the land records of the 
 town within the first year of said period their certificate, describing 
 the real estate, the amount of the tax and the time when it became
 
 ALBANY BKEWIXG CO. V. MERIDEN. 491 
 
 due; and thereupon such tax shall remain a lien upon such land at 
 interest at seven per cent, a year, and said land may at any time 
 during said period be sold for said tax in the same manner as if sold 
 within said first year." 
 
 This statute authorized the imposition upon one piece of land of a 
 lien for all taxes legally assessed against the owner thereof, not only 
 upon that but upon any other land or property belonging to him. 
 
 For the period of one year from the several dates when they be- 
 came payable, the taxes took precedence of every other lien upon the 
 real estate of Brady and Grogan, and the same might have been taken 
 therefor without regard to the transfer thereof or the levy of an execu- 
 tion thereon; within that period and while that lien was in full force 
 the selectmen legally gave to it the statutory extension of ten years, 
 thus preserving to it during that period the priority which it enjoyed 
 during the first year of its existence. This lien with its extension is a 
 statutory creation; it stands quite apart from the matter of selling 
 land upon a tax-warrant, and is not encumbered by any proviso as to 
 the possession of other property. It is a concession to the taxpayer. 
 The State waives its right to immediate payment by a forced sale, and 
 accepts a first mortgage for ten years. All that the statute has made 
 necessary to its validity is a legal assessment and a proper and timely 
 record of the lien. 
 
 This lien takes precedence of all others; mortgages take their 
 security with knowledge that the sovereignty must and will take by 
 taxation all that is necessary to the preservation of its own life; the 
 life of the State is of higher concern than the protection of a debt due 
 to an individual member of it. Therefore every piece of real estate 
 must contribute its fair proportion to the public treasury if the au- 
 thorities move within a specific time and according to statutory 
 methods; and this regardless of mortgagees or purchasers. 
 
 We advise the Court of Common Pleas to dismiss the petition. 
 
 In this opinion the other judges concurred.
 
 THE COLLECTION OF THE TAX. 
 
 KING V. MULLINS. 
 
 Supreme Court of the United States. October, 1897. 
 171 U. 8. 
 
 Mr. Justice HARLAN delivered the opinion of the court. 
 
 This action of ejectment was brought to recover that part lying 
 in the state of West Virginia of a tract of 500,000 acres of land 
 patented by the commonwealth of Virginia in 1795 to Robert Morris, 
 assignee of Wilson Gary Nicholas. 
 
 At the trial in the circuit court the plaintiff introduced in evi- 
 dence the patent to Morris showing that the lands therein described 
 were granted without conditions. Evidence was also introduced tend- 
 ing to show that by sundry mesne conveyances and legislative and 
 judicial proceedings the title of Morris became vested, in 1866, in 
 Robert Randall, trustee; in John R. Reed, trustee, on the 29th day 
 of June, 1886 ; and through sundry mesne conveyances by Reed, trus- 
 tee, David W. Armstrong and John V. LeMoyne in the plaintiff King 
 on the 27th day of December, 1893. 
 
 The defendants resisted the claim of the plaintiff upon the general 
 ground that prior to the date of the deed from LeMoyne, the lands 
 embraced in the patent were absolutely forfeited to the state, and were 
 so forfeited when the present action was instituted. 
 
 The controlling question in this case relates to the validity under 
 the Constitution of the United States of certain provisions in the 
 constitution and statutes of West Virginia for the forfeiture of lands 
 by reason of the failure of the owners during a given period to have 
 them placed upon the proper land books for taxation. 
 
 The question of constitutional law thus presented is one of unusual 
 gravity. On the one hand, it must not be forgotten that the clause 
 of the National Constitution which this court is now asked to in- 
 terpret is a part of the supreme law of the land, and that it must be 
 given full . force and effect throughout the entire Union. The due 
 process of law, enjoined by the Fourteenth Amendment must mean 
 the same thing in all the States. On the other hand, a decision of 
 this court declaring that the amendment forbids a State, by force alone 
 of its constitution or statutes, and without inquisition or inquiry 
 in any form, to take to itself the absolute title to lands of the citizen 
 because of his failure to put them on record for taxation, or to pay
 
 KING V. MULLINS. 493 
 
 the taxes thereon, might greatly disturb the land titles of two States 
 under a system which has long beens upheld and enforced by their 
 respective legislatures and courts. Under these circumstances, our 
 duty is not to go beyond what is necessary to the decision of the par- 
 ticular case before us. If the rights of the parties in this case can 
 be fully determined without passing upon the general question whether 
 the clause of the West Virginia constitution in question, alone con- 
 sidered, is consistent with the national constitution, that question may 
 properly be left for examination until it arises in some case in which 
 it must be decided. 
 
 We come then to inquire whether, looking at the constitution and 
 the statutes of West Virginia together, a remedy was not provided 
 which, if pursued, furnished to the plaintiff and those under whom 
 he asserts title all the opportunity that "due process of law" required 
 in order to vindicate any rights that he or they had in respect of the 
 lands in question. 
 
 It thus appears that when the lands in question and others em- 
 braced in the Morris patent were, as is contended, forfeited to the 
 state for the failure of the owner during the five consecutive years 
 after they were redeemed by Randall, trustee, in 1883, to have them 
 entered upon the land books of the proper county and charged with 
 the taxes thereon, it was provided by the statutes of West Virginia: 
 
 That all lands thus forfeited to the State should be sold for the 
 benefit of the school fund; 
 
 That the sale should be sought by petition filed by the commis- 
 sioner of school lands in the proper Circuit Court, to which proceed- 
 ing all claimants should be made parties, and be brought in by personal 
 service of summons upon all found in the county, or by publication 
 as to those who could not be found ; 
 
 That the petition should be referred to a commissioner in chancery, 
 who should report upon the same and upon such other things as 
 the court might direct, and particularly as to the amount of taxes 
 due and unpaid upon any lands mentioned in the petition, in whose 
 name and when and how forfeited, and in whom the legal title was at 
 the time of the forfeiture ; 
 
 That if there were no exceptions to the report, or if there were ex- 
 ceptions which were overruled, the court was required to confirm the 
 same and decree a sale of the lands for the benefit of the school fund , 
 and, 
 
 That at any time during the pendency of the proceedings insti- 
 tuted for the sale of forfeited lands for the benefit of the school
 
 494 THE COLLECTION OF THE TAX. 
 
 fund, the owner, or any creditor of the owner having a lien thereon, 
 might file his petition in the Circuit Court of the county for the 
 redemption of his lands upon the payment into court, or to the com- 
 missioner of school lands, of all costs, taxes and interest due thereon, 
 and obtain a decree or order declaring the lands redeemed so far as 
 the title thereto was in the State immediately before the date of such 
 order. 
 
 If, as contended, the State without an inquisition or proceeding of 
 some kind declaring a forfeiture of lands for failure during a named 
 period to list them for taxation, and by force alone of its constitution 
 or statutes, could not take the absolute title to such lands, still it was 
 in its power by legislation to provide, as it did, a mode in which the 
 attempted forfeiture or liability to forfeiture could be removed and 
 the owner enabled to retain the full possession of and title to his 
 lands. 
 
 We should therefore look to the constitution and statutes of the 
 State together for the purpose of ascertaining whether the system 
 of taxation established by the State was, in its essential features, con- 
 sistent with due process of law. If, in addition to the provisions 
 contained in the constitution, that instrument had itself provided for 
 the sale of forfeited lands for the benefit of the school fund, but re- 
 served the right to the owner, before sale and within a reasonable 
 period, to pay the taxes and charges due thereon, and thereby relieve 
 his land from forfeiture, we do not suppose that such a system would 
 be held to be inconsistent with due process of law. If this be true, 
 it would seem to follow necessarily that if the statutes of the State, 
 in connection with the constitution, gave the taxpayer reasonable op- 
 portunity to protect his lands against a forfeiture arising from his 
 failure to place them upon the land books, there is no ground for 
 him to complain that his property has been taken without due pro- 
 cess of law. 
 
 Much of the argument on the behalf of the plaintiff proceeds upon 
 the erroneous theory that all the principles involved in due process 
 of law as applied to proceedings strictly judicial in their nature 
 apply equally to proceedings for the collection of public revenue by 
 taxation. On the contrary, it is well settled that very summary 
 remedies may be used in the collection of taxes that could not be- 
 applied in cases of a judicial character. 
 
 It thus appears that under the statutes of West Virginia in force 
 after 188? the owner of the forfeited lands had the right to become
 
 KING V. MULLINS. 49o 
 
 a party to a judicial proceeding, of which he was entitled to notice, 
 and in which the court had authority to relieve him, upon terms 
 that were reasonable, from the forfeiture of his lands. 
 
 It is said that the landowner will be without remedy if the com- 
 missioner of the school fund should fail to institute proceedings in 
 which the statute permitted such owner to intervene by petition and 
 obtain a redemption of his lands from the forfeiture claimed by the 
 State. It cannot be assumed that the commissioner will neglect to 
 discharge a duty expressly imposed upon him by law, nor that the 
 courts are without power to compel him to act, where his action be- 
 comes necessary for the protection of the rights of the landowner. 
 
 It is further said that a forfeiture may arise under the constitution 
 of West Virginia despite any effort of the landowner to prevent it; 
 that although the owner may direct his lands to be entered on the 
 proper land books, and that he be charged with the taxes due thereon, 
 the custodian of such books may neglect to perform his duty. Thus, 
 it is argued, the lands may be forfeited by reason of the landowner 
 not having been, in fact, charged on the land books with the taxes 
 due from him, although he was not responsible for such neglect. 
 We do not so interpret the state constitution or the statutes enacted 
 under it. If the landowner does all that is reasonably in his power 
 to have his lands entered upon the land books and to cause himself 
 to be charged with taxes thereon, no forfeiture can arise from the 
 owner not having been "charged on such books" with the state tax. 
 The state could not acquire any title to the lands merely through the 
 neglect of its agent having custody or control of its land books. Any 
 steps attempted to be taken by the officers of the state based upon 
 such neglect of its agent the taxpayer not being in default would 
 be without legal sanction, and could be restrained by any court hav- 
 ing jurisdiction in the premises. We go further and say, that any 
 sale had under the statute providing for a sale, under the order of 
 court, for the benefit of the school fund, of lands alleged to be for- 
 feited by reason of their not having been charged on the land books 
 for five consecutive years with the state tax due thereon, would be 
 absolutely void, if the landowner was not before the court, and had 
 not been duly notified of the proceedings, but had done all that he 
 could reasonably do to have his lands entered on the proper books and 
 to cause himself to be charged with the taxes due thereon. If the 
 state was not entitled to treat them as forfeited lands, that fact could 
 be shown in the proceeding instituted for their sale as lands of that 
 character, and the rights of the owner fully protected. In the pres- 
 ent case it does not appear that any evidence was offered tending to
 
 196 THE COLLECTION OF THE TAX. 
 
 show that the absence from the land books of any charge of taxes on 
 the lauds claimed by the plaintiff during five consecutive years after 
 their redemption by Randall, trustee, in 1883 was due to any neglect 
 of the officers of the State, or that the plaintiff, or those under whom 
 he asserts title, entered or attempted to enter the lands upon the 
 land books, or that he or they caused or attempted to cause the lands 
 to be charged with taxes thereon. But there was evidence tending 
 to show that the requirements of the constitution were not met dur- 
 ing any of the years from 1883 to the bringing of this action. So 
 far as the record discloses, it is a case of sheer neglect upon the 
 part of the landowner to perform the duty required of him by the 
 constitution and statutes of the State. 
 
 For the reasons stated, we hold that the system established by 
 West Virginia, under which lands liable to taxation are forfeited to 
 the State by reason of the owner not having them placed or caused 
 to be placed during five consecutive years, on the proper land books 
 for taxation, and caused himself to be charged with the taxes there- 
 on, and under which, on petition required to be filed by the repre- 
 sentative of the State in the proper Circuit Court, such lands are 
 sold for the benefit of the school fund, with liberty to the owner, 
 upon due notice of the proceeding, to intervene by petition and secure 
 a redemption of his lands from the forfeiture declared by paying the 
 taxes and charges due upon them, is not inconsistent with the due 
 process of law required by the Constitution of the United States or 
 the constitution of the State. 
 
 Having discussed all the points suggested by the assignments of 
 error which we deem it necessary to examine, we conclude this opinion 
 by saying that as neither the plaintiff nor those under whom he 
 claims title availed themselves of the remedy provided by the statutes 
 of West Virginia for removing the forfeiture arising from the fact 
 that, during the years 1884, 1885, 1886, 1887 and 1888, the lands in 
 question were not charged on the proper land books with the state taxes 
 thereon for that period or any part thereof, the forfeiture of such 
 lands to the State was not displaced or discharged, and the Circuit 
 Court properly directed the jury to find a verdict for the defendants. 
 The plaintiff was entitled to recover only on the strength of his own 
 title. Whether the defendants had a good title or not the plaintiff 
 had no such interest in or claim to the lands as enabled him to main- 
 tain this action of ejectment. We concur in what the Supreme Court 
 of Appeals of Virginia said in a case recently decided : "In an action 
 of ejectment the plaintiff must recover on the strength of his own
 
 PALMER V. McMAHON. 497 
 
 title, and if it appear that the legal title is in another, whether that 
 other be the defendant, the Commonwealth, or some third person, 
 it is sufficient to defeat the plaintiff. It appears that the title has 
 been forfeited to the Commonwealth for the nonpayment of taxes, 
 or other cause, and there is no evidence that it has been redeemed 
 by the owner, or resold, or regranted by the Commonwealth, the pre- 
 sumption is that the title is still outstanding in the Commonwealth." 
 Reusens v. Lawson, 91 Virginia 226. 
 
 The judgment of the circuit court of the United States is 
 
 Affirmed. 
 
 III. ARREST AND IMPRISONMENT. 
 PALMER V. McMAHON. 
 
 Supreme Court of the United States. October, 1889. 
 133 U. S. -660. 
 
 This was a writ of error to the Court of Common Pleas for the 
 city and county of Xew York to review a judgment and order find- 
 ing Francis A. Palmer guilty of misconduct in neglecting to pay 
 personal taxes assessed, imposed and confirmed against him for the 
 year 1881, and ordering that he stand committed until he should have 
 paid the amount of the said taxes, with interest and costs, unless 
 the court should see fit sooner to discharge him, which judgment 
 and order was rendered in a proceeding brought under the provisions 
 of chapter 230 of the laws of the state of New York of 1843, Art. 2, 
 sections 12 and 13. 
 
 Mr. Chief Justice FULLER delivered the opinion of the court. 
 
 We are bound by the decision of the court of appeals of the State 
 of New York adversely to the plaintiff in error, as to failure to com- 
 ply with the state statute in relation to the method of procedure, form 
 of assessment, oath of assessors, etc., in respect to which it may be 
 further remarked that the attack in this case is in its nature collateral. 
 Stanley v. Supervisors 121 U. S. 535; Supervisors v. Stanley, 105 
 TJ. S. 305. We proceed to examine therefore whether the assessment 
 was invalid because the statute under which it was laid contravened 
 the Constitution or laws of the United States, and whether the pro- 
 ceedings authorized by chapter 230 of the laws of 1843, operated to 
 32
 
 498 THE COLLECTION OF THE TAX. 
 
 deprive the citizen of liberty or property without due process of law. 
 
 It is argued that chapter 230 of the laws of New York of 1843 is 
 unconstitutional, as depriving the plaintiff in error of liberty and 
 property without due process of law, and of the equal protection of 
 the laws, in violation of the Fourteenth Amendment to the Consti- 
 tution of the United States. That amendment provides, that no state 
 "shall make or enforce any law which shall abridge the privileges or 
 immunities of citizens of the United States; nor shall any state de- 
 prive any person of life, liberty or property without due process of 
 law, nor deny to any person within its jurisdiction the equal protec- 
 tion of the laws." It is insisted that Palmer had no notice and no 
 opportunity to be heard or to confront or cross-examine the witnesses 
 for the taxing authorities or to subpoena witnesses in his own behalf ; 
 and had not otherwise the protection afforded in a judicial trial upon 
 the merits. The phrase "due process of law" does not necessarily 
 mean a judicial proceeding. "The nation from whom we inherit the 
 phrase 'due process of law/ " said this court, speaking by Mr. Justice 
 Miller, "has never relied upon the courts of justice for the collection 
 of her taxes, though she passed through a successful revolution in 
 resistance to unlawful taxation." McMillen v. Anderson, 95 U. S. 
 37, 41. 
 
 The power to tax belongs exclusively to the legislative branch of the 
 government, and when the law provides for a mode of confirming or 
 contesting the charge imposed, with such notice to the person as is 
 appropriate to the nature of the case, the assessment cannot be said 
 to deprive the owner of his property without due process of law. 
 Spencer v. Merchant, 125 U. S. 345; Walston v. Nevin, 128 U. S. 
 578. The imposition of taxes is in its nature administrative and not 
 judicial, but assessors exercise quasi judicial powers in arriving at the 
 value, and opportunity to be heard should be and is given under all 
 just systems of taxation according to value. 
 
 It is enough, however, if the law provides for a board of revision 
 authorized to hear complaints respecting the justice of the assessment 
 and prescribes the time during which and the place where such com- 
 plaints may be made. Hagar v. Reclamation District, 111 U. S. 701, 
 710. 
 
 The law of New York gave opportunity for objection before the tax 
 commissioners, Laws of New York, 1859, c. 302, section 10, p. 681, 
 and the plaintiff in error appeared and obtained a large deduction 
 from the original valuation. If dissatisfied with the final action of 
 the commissioners, he could have had that action reviewed on cer-
 
 COMMONWEALTH V. BYRNE. 499 
 
 tiorari. Laws of New York, 1859, c. 302, 20, p. 684; People v. 
 Commissioners, 4 Wall. 244. But he did not avail himself of this 
 remedy. 
 
 The proceeding here was purely an executive process to collect the 
 tax after the liability of the party was finally fixed. 
 
 Collection by distress and seizure of person is of very ancient date, 
 Murray's Lessee v. II ob ok en Land Company, 18 How. 272 ; and coun- 
 sel for defendant in error cites many English statutes, commencing 
 with the twelfth year of Henry VII, c. 13, which in their essential 
 features resemble the Xew York law upon the subject, one in 6 Henry 
 VIII, c. 26, being strikingly like it. 2 Statutes of the Realm 644; 
 3 Ib. 156, 230, 516, 812; 4 Ib. 176, 334, 385, 744, 991, 1108, 1247; 
 5 Ib. 700; 7 Ib. 567. Under the act of 1843 commitment is not re- 
 sorted to until other means of collection have failed and then only 
 upon a showing of property possessed, not accessible to levy, but en- 
 abling the owner to pay if he chooses, this constituting such miscon- 
 duct as justifies the order. That law had been in existence for more 
 than forty years at the time of this proceeding. We do not regard 
 the collection in this way, founded on necessity and so long recognized 
 by the State of New York as to be justifiably resorted to under the 
 circumstances detailed in the act, and operating alike on all persons 
 and property similarly situated, as within the inhibitions of the Four- 
 teenth Amendment. 
 
 The judgment is 
 
 Affirmed. 
 
 Mr. Justice BLACTHFORD did not take any part in the decision of 
 this case. 
 
 COMMONWEALTH V. BYRXK. 
 
 Supreme Court of Appeals of Virginia. January, 1871. 
 20 Grattan 165. 
 
 MONCURE, P. The petitioner does not claim his discharge from 
 imprisonment upon the ground that the Legislature had not a right 
 to impose the tax, for the non-payment of which he was arrested; 
 nor upon the ground that he did not use and enjoy the privilege on 
 which the tax was imposed ; nor upon the ground that he has paid the 
 tax, or any part of it ; nor upon the ground that, at the time of his 
 arrest, he had any property out of which the tax, or any part of it,
 
 500 THE COLLECTION OF THE TAX. 
 
 could have been made by a levy thereon. He does not even show, 
 or say, that he has not, in his pocket, or at his command, the means 
 of paying the tax. But he places his defence upon the grounds: 
 First. That the law authorizing an arrest and imprisonment in 
 such cases is unconstitutional and void, because contrary to the consti- 
 tutions both of the United States and of this State. 
 
 First, as to the constitutionality of the law under which the peti- 
 tioner was arrested. 
 
 That law is the 63d section of chapter 57 of the acts of the General 
 Assembly, passed at the session of 1866-67, Sess. Acts, p. 849, and is 
 in these words: 
 
 "63. Within ten days after the commissioner of the revenue shall 
 have granted a certificate to obtain a license, he shall deliver to the 
 sheriff or other collector of the taxes on such licenses, a list of all 
 such certificates, as far as he may have progressed with the same; 
 which list shall be the guide of the sheriff or collector in collecting 
 the taxes imposed by law on such license. If the taxes be not paid, 
 the sheriff or collector shall distrain, immediately upon the receipt 
 of such list, for the amount with which any person may have been 
 assessed; and he mayi sell, upon ten days' notice, so much of such 
 person's property, subject to distress, as may be necessary to pay 
 the taxes so assessed, and the cost attending its collection. If the 
 sheriff or collector shall be unable to find sufficient property to satisfy 
 the taxes so assessed, and the same shall not be immediately paid, 
 the said sheriff or collector shall arrest the person so assessed, and 
 hold him in custody until the payment is made, or until he enter 
 into bond, with sufficient security, in a* penalty at least double the 
 amount of the taxes so assessed, conditioned for his appearance before 
 the Circuit court of his county or corporation, to answer such action 
 of debt, indictment or information as may be brought against him, 
 and to satisfy, not only the fine imposed, but to pay the taxes assessed ; 
 and it shall be lawful for the court, upon the trial of such action of 
 debt, indictment or information, to render judgment upon such bond 
 for the fine imposed and the taxes which may be assessed/' 
 
 Is the law in question contrary to that Bill of Rights of Virginia 
 which declares that no man shall "be deprived of his liberty, except 
 by the law of the land or the judgment of his peers?" 
 
 That a man may be deprived of his liberty by the law of the land 
 is conceded by the very terms of the provision just metinoned. That 
 he cannot "be deprived of his liberty except by the law of the land,"
 
 COMMONWEALTH V. BYKNE. 501 
 
 necessarily implies that he may be deprived of it by the law of the 
 land; and this is certainly an undeniable fact. 
 
 What, then, is the meaning of these words, "law of the land," in 
 this connection, and do they embrace the law under consideration? 
 These are the questions we now have to dispose of. 
 
 The meaning of such a provision has been the sub- 
 ject of consideration and decision in many cases. The most import- 
 ant of them all seems to be the case of Murray's lessee, &c., v. Ho- 
 boken Land & Improvement Co., 18 How. U. S. R. 272-286, decided 
 by the Supreme Court of the United States at December Term, 1855. 
 Mr. Justice Curtis delivered the opinion of the court, which was 
 unanimous. In that case it was held, among other things, that a 
 distress warrant, issued by the solicitor of the treasury, under the 
 act of Congress passed on the 15th of May, 1820, (3 Stats, at Large, 
 592), is not inconsistent with the constitution of the United States; 
 that it was an exercise of executive and not of judicial power, ac- 
 cording to the meaning of those words in the constitution; and that 
 it is not inconsistent with that part of the constitution which prohibits 
 a citizen from being deprived of his liberty or property without due 
 process of law. 
 
 After giving an account of the practice pursued at different times 
 in England in such cases, the court say: "This brief sketch of the 
 modes of proceeding to ascertain and enforce payment of balances due 
 from receivers of the revenue in England, is sufficient to show that 
 the methods of ascertaining the existence and amount of such debts, 
 and compelling their payment, have varied widely from the usual 
 course of the common law on other subjects, and that as respects 
 such debts due from such officers, 'the law of the land' authorizes the 
 employment of auditors, and an inquisition without notice, and a 
 species of execution, bearing a very close resemblance to what is termed 
 a warrant of distress in the act of 1820, now in question. 
 
 It is certain that this diversity in "the law of the land," between 
 public defaulters and ordinary debtors, was understood in this country, 
 and entered into the legislation of the colonies and provinces, and 
 more especially of the States, after the declaration of independence 
 and before the formation of the constitution of the United States. 
 Xot only was the process of distress in nearly or quite universal use 
 for the collection of taxes, but what was generally termed a warrant 
 of distress, issuing against the body, goods and chattels of defaulting
 
 502 THE COLLECTION OF THE TAX. 
 
 receivers of public money, was issued to some public officer, to whom 
 was committed the power to ascertain the amount of the default, and 
 by such warrant proceed to collect it. Without a wearisome repetition 
 of details, it will be sufficient to give one section from the Massa- 
 chusetts act of 1786." After giving which the court refers to similar 
 provisions contained in the acts of Connecticut, Pennsylvania, South 
 Carolina, New York, Virginia and Vermont, passed before the for- 
 mation of the constitution of the United States, and in the acts of 
 Louisiana and the United States, passed since that period; and then 
 say: "This legislative construction of the constitution, commenc- 
 ing so early in the government, when the first occasion for this manner 
 of proceeding arose, continued throughout its existence and repeat- 
 edly acted on by the judiciary and the executive, is entitled to no 
 inconsiderable weight upon the question, whether the proceeding 
 adopted by it was 'due process of law'." "Tested by the common and 
 statute law of England, prior to the emigration of our ancestors, and 
 by the laws of many of the States at the time of the adoption of this 
 amendment, the proceedings authorized by the act of 1820, cannot 
 be denied to be due process of law, when applied to the ascertainment 
 and recovery of balances due to the government from a collector of 
 customs, unless there exists in the constitution some other pro- 
 vision which restrains Congress from authorizing such proceedings. 
 For, though 'due process of law* generally implies and includes 
 actor, reus, judex, regular allegations, opportunity to answer, and 
 a trial according to some settled course of judicial proceedings (2 
 Inst. 47, 50; Holce v. Henderson, 4 Dev. N. C. K. 15; Taylor v. 
 Porter, 4 Hill E. 140, 146; Van Zant v. Waddell, 2 Yerg. E. 260; 
 State Bank v. Cooper, Id. 599 ; Jones' Heirs v. Perry, 10 Id. 59 ; 
 Greene v. Briggs, 1 Curtis C. C. E. 311), yet this is not universally 
 true. There may be, and we have seen that there are cases, under 
 the law of England, after magna charta and as it was brought to this 
 country and acted on here, in which process, in its nature final, issues 
 against the body, lands and goods of certain public debtors, without 
 any such trial; and this brings us to the question, whether these pro- 
 visions of the constitution which relate to the judicial power, are 
 incompatible with these proceedings?" 
 
 ..The court then proceed to examine this question, and arrive at 
 the conclusion that no such incompatibility exists. In the course 
 of their remarks upon this subject, they say: "As we have already 
 shown, the means provided by the act of 1820 do not differ in princi- 
 ple from those employed in England from remote antiquity, and 
 in many of the States, so far as we know, without objection, for this
 
 COMMONWEALTH V. BYRNE. 503 
 
 purpose, at the- time the constitution was formed. It may be added 
 that probably there are few governments which do or can permit their 
 claims for public taxes, either on the citizen or on the officer em- 
 ployed for their collection or disbursement, to become subjects of 
 judicial controversy, according to the course of the law of the land. 
 Imperative necessity has forced a distinction between such claims and 
 all others, which has sometimes been carried out by summary meth- 
 ods of proceeding, and sometimes by systems of fines and penalties, 
 but always in some way observed and yielded to." 
 
 I have made these long quotations, because the case from which 
 they are taken is one of the highest authority, and seems to be con- 
 clusive of the main point in controversy in this case, and because 
 the language of the court in that case expresses the views which I 
 wish to present, much more strongly and aptly than I can do, by any 
 language of my own. Many other cases may be cited in support of the 
 same views. 
 
 In Blackwell on Tax Titles, p. 176, edition of 1864, chapter 9, the 
 writer says : "Where the person against whom a tax has been legally 
 assessed neglects or refuses to pay the tax voluntarily, after a noti- 
 fication and demand made by the collector in the manner provided 
 by law, the necessities of the State compel a resort to coercive means. 
 In some States the law requires the body of the delinquent to be ar- 
 rested and imprisoned in satisfaction of the tax." Bassett v. Porter, 
 -i Cush. E. 487; Daggett v. Everett, 19 Maine R. 373; Rising v. 
 Granger I Mass R. 47; Appleton v. Hopkins, 5 Gray's R. 530. "In 
 other States, the law requires the tax to be collected out of the per- 
 sonal estate of the delinquent if a sufficiency can be found to satisfy 
 it. In South Carolina the statute thus marshals the remedies: 1. A 
 distress of the personal estate of the delinquent; 2. The sale of the 
 land; 3. The seizure and imprisonment of the body. Kingman v. 
 Glover, 3 Rich. R. 27. A violation of the order of remedies thus pre- 
 scribed invariably renders the act of the officer illegal. It is the policy 
 of the law to resort to the land itself only when all other remedies 
 fail to enforce a satisfaction of the tax. The person or personal es- 
 tate of the delinquent is regarded as the primary, the land as the 
 dernier resort. The tax never becomes a charge upon the land until 
 the other remedies have been exhausted." "The law admits of no sub- 
 stitution or change in the order thus established. It is therefore 
 held that the land of the delinquent cannot be sold in those States 
 which authorize imprisonment, if his body can be found, nor can 
 a resort be had to the land, in States where the personal estate is re-
 
 504 THE COLLECTION OF THE TAX. 
 
 garded as the primary fund, as long as a sufficiency of personal es- 
 tate can be seized and sold in satisfaction of the tax: a sale of the 
 land, under such circumstances, is illegal and void." 
 
 I presume no one will contend, and I do not understand the learned 
 counsel for defendant in error as contending in this case, that the 
 law in question is unconstitutional in authorizing the sheriff or Kia 
 collector to distrain the property of the person assessed with taxes 
 as therein mentioned, if they be not paid. The necessity of such a 
 power, and its constant exercise from time immemorial, as we have 
 seen, places its constitutionality on an impregnable basis. But it 
 seems to be supposed that the law is unconstitutional in author- 
 izing the sheriff or collector, if unable to find sufficient property to 
 satisfy the taxes so assessed, and the same shall not be immediately 
 paid, to arrest the person so assessed and hold him in custody until 
 the payment is made, or until he enter into bond with sufficient secur- 
 ity, as therein mentioned. Why should this power to arrest a per- 
 son so assessed make the law unconstitutional any more than the power 
 to distrain his goods ? The ground of the objection is that a person 
 cannot be deprived of his liberty except by the law of the land. But 
 a person cannot be deprived of his property, any more than his lib- 
 erty, except by the law of the land; and yet it is well settled, and 
 must be admitted, that a person's property may be seized for non- 
 payment of his taxes, upon the mere assessment of the commissioner 
 of the revenue, and without any judgment of any court against him. 
 Why may not his person be arrested for the same cause, when the 
 law expressly authorizes such an arrest? We have seen that the 
 authorities place the seizing of the property, and arresting of the 
 person of the tax debtor, on the same footing, in regard to the con- 
 stitutional question we are now considering; and so they undoubt- 
 edly are. The power to arrest the person may not be so often given 
 by tax laws as the power to distrain property; but a power to arrest 
 the person is often given by such laws, and is sometimes necessary 
 to make them efficient; and whenever it is necessary, the Legislature, 
 which is) charged with the important duty of raising a revenue for 
 the support of the government, may constitutionally confer such 
 a power. It is not contrary, as has been shown, to the provision of 
 the Bill of Rights referred to, nor is it contrary to any other pro- 
 vision of the constitution. There is no provision in our constitution, 
 as there is in some of the other State constitutions, which forbids 
 imprisonment for debt. And it is well known that, until a recent 
 period, a person might be imprisoned in this State, not only on 
 final process in a civil action, but on original process in a bailable
 
 COMMONWEALTH V. BYRNE. 505 
 
 action, by a mere endorsement by the plaintiff's attorney on the proc- 
 ess, requiring bail. And though the law has been changed in this re- 
 spect, yet the old law may at any time be restored, at the will of 
 the Legislature. There is nothing in the constitution to prevent it. 
 Even if imprisonment for debt were forbidden by the constitution, 
 such a provision would not, I imagine, forbid imprisonment as a 
 means of enforcing the payment of taxes, if the Legislature found it 
 necessary to resort to such means in order to raise a revenue. But 
 such a question does not arise in this case, and of course is not in- 
 tended to be decided. 
 
 But it is objected that imprisonment might be perpetual under this 
 law, as it makes no provision for the discharge of the prisoner, even 
 though he be insolvent. 
 
 If this be true, it may show the law to be harsh in its operation, 
 but does not therefore show it to be unconstitutional. It may be a 
 bad exercise of legislative discretion, but not an excess of legisla- 
 tive power. The courts may control the latter, but have nothing to 
 do with the former. 
 
 But it is said that the law is harsh, and indeed unconstitutional, 
 in requiring the person arrested to give bond, etc., for his appearance 
 before the Circuit court of his county or corporation, to answer such 
 action of debt, indictment or information, as may be brought against 
 him, and to satisfy, not only the fine imposed, but the taxes assessed. 
 
 The law does not require him to give such a bond. He may dis- 
 charge himself from custody by payment of the tax. What is said 
 about the bond is for his benefit. He may give the bond, and obtain 
 his discharge in that way, if he cannot, or does not, choose to pay 
 the money. There is nothing unreasonable in the condition of the 
 bond which he is thus authorized to give. He has incurred a fine, for 
 which an action for debt, or an indictment, or an information lies, 
 and he also owes the taxes assessed. The condition of the bond is 
 not to pay the fine absolutely, but to answer to such action of debt, 
 indictment or information as may be brought against him, and to 
 satisfy the fine imposed ; that is, the fine which may be imposed on the 
 trial of such action of debt, indictment or information; and also to 
 pay the taxes assessed. 
 
 I therefore think the law under which the petitioner was arrested 
 is constitutional. 
 
 A common method of ensuring the payment of taxes is the imposition 
 of a penalty upon the taxpayer for failure to pay the tax, as e. g., failure
 
 506 THE COLLECTION OF THE TAX. 
 
 to take out the license made necessary by law for the conduct of a business 
 subjected to a tax, or to do a thing whose performance renders the collec- 
 tion of the tax easier. Cases in this collection of the imposition of such 
 penalties are: Brown v. Maryland, 12 Wheaton 419; Drexel v. Common- 
 wealth, 46 Pa. St. 31 ; Fairbank v. United States, 181 U. S. 285 ; Leloup v. 
 Port of Mobile, 127 U. S. 640; Metropolitan Board of Excise v. Barrie, 34 
 N. Y. 657; Osborne v. Florida, 164 U. S. 650; People v. Coleman, 4 Cal. 
 46; Robbins v. Shelby County Taxing District, 120 U. S. 489; State v. 
 Schlier, 3 Heiskell (Term.), 281; Waring v. Mayor, 8 Wallace U. S. 110.
 
 CHAPTER XII. 
 THE SALE OF LAND FOR UNPAID TAXES. 
 
 I. WHEN LAND MAY BE SOLD. 
 BEOWN V. VEAZIE. 
 
 Supreme Judicial Court of Maine. July, 1845. 
 25 Maine 359. 
 
 WHITMAN, C. J. It appears, that the tenant claims to hold the 
 demanded premises as mortgagee under Joseph Smith, by deed bear- 
 ing date, December 28, 1836. The tenant, being in possession, un- 
 der a title apparently good, he cannot be disturbed, but by a claim- 
 ant under a title paramount to his. The demandant claims under 
 a sale made for the non-payment of taxes, assessed on the premises, 
 in the town of Orono, in June, 1839. His deed from the collector 
 bears date, May 9, 1840. To substantiate his claim he introduced, 
 at the trial, proof, supposed by him to be sufficient to show the 
 legality of the assessment, and of the proceedings of the collector 
 in making sale of the premises. 
 
 Sales of real estate, for the non-payment of taxes, must be re- 
 garded, in a great measure, as an ex parte proceeding. The owner 
 is to be deprived of his land thereby; and a series of acts, prelimi- 
 nary to the sale, are to be performed to authorize it on the part of 
 the assessors and collector, to which his attention may never have 
 been particularly called; and experience and observation render it 
 notorious, that the amount paid by purchasers, at such sales, is uni- 
 formly trifling in comparison with the real value of the property 
 sold. In this very instance the purchaser, at the collector's sale, 
 bought, for less than $17, an estate, valued by the assessors at $900. 
 It has, therefore, been held, with great propriety, that, to make out 
 a valid title, under such sales, great strictness is to be required; and 
 it must appear that the provisions of law preparatory to, and au- 
 thorizing such sales, have been punctiliously complied with. The 
 counsel for the defendant, in this case, may therefore, be excusable, 
 if not commendable, for the astuteness and searching manner in 
 
 507
 
 508 SALE OF LAND FOE UNPAID TAXES. 
 
 which he has scrutinized the doings of those officers, in the instance 
 before us. 
 
 Collectors have no power to sell lands, by reason of the non-pay- 
 ment of taxes assessed thereon, except in pursuance of the provisions 
 contained in the statutes; and can sell only in the precise cases in 
 which it has been so authorized. The statute of 1821, c. 116, 30, 
 provides for a sale of real estate for the non-payment of taxes, no 
 one having appeared to pay them, "of unimproved lands of non-res- 
 ident proprietors;" and of "improved lands of proprietors living 
 out of the limits of the State;" and, 31, provides for the sale, for 
 the non-payment of taxes, of improved lands of proprietors, living 
 in the State, but not in the town in which such real estate lies, 
 after first giving the proprietor notice in writing, two months prior 
 to proceeding to sell; and by the act, of 1823, c. 229, collectors may 
 sell improved real estate, taxed to the owner thereof, for the non- 
 payment of his tax, assessed thereon, whether he may be living in 
 this State or elsewhere. These are all the cases in which a collector 
 can make a valid sale of real estate, for the non-payment of taxes, 
 assessed thereon. 
 
 Now, was the estate in question, in either of these predicaments? 
 It was not, in the first place, unimproved land; for it is apparent, 
 that it was a mere house lot, with a house and stable on it. Sec- 
 ondly, it was not improved land of a proprietor, living out of the 
 State; for the owner lived in Bangor, but ten or twelve miles from 
 it; thirdly, no notice in writing was given to the owner, two months 
 before proceeding to make sale of the estate; and, fourthly, the 
 estate was not, as provided in the statute of 1823, taxed to the 
 owner. It was taxed as belonging to persons unknown. The stat- 
 ute, of 1823, was passed to authorize the taxing of land possessed 
 by a lessee, either to him or to the owner thereof, unquestionably 
 by name. It would not, in common parlance, be taxed to him un- 
 less he were named as the person taxed. Being so taxed he would 
 be subject to other modes of enforcing payment, as by arrest, dis- 
 traint or suit. A tax to persons unknown does not subject the 
 owner to any compulsory process, except by the sale of his land. 
 Property taxed to an individual, therefore, must be understood to 
 be to him by name, and not as a person unknown. 
 
 It seems to us to be very clear, that a collector, before he can 
 proceed to sell real estate, taxed to persons unknown, must ascer- 
 tain whether the estate be improved or not. If improved, he must 
 ascertain whether the owner lives out of the State or not. If he
 
 SLATER V. MAXWELL. 509 
 
 lives in the State, then, the collector must, before proceeding to 
 sell his land for taxes, give him two months previous notice in 
 writing of his liability. In this case the estate being taxed to own- 
 ers unknown, and being under improvements, and no such notice 
 having been given, the sale was unauthorized and void. 
 
 Plaintiff nonsuit. 
 
 SLATER V. MAXWELL. 
 
 Supreme Court of the United States. December, 1867. 
 6 Wallace 268. 
 
 Appeal from the District Court for Western Virginia. 
 
 Slater filed a bill in that court to compel one Maxwell to release 
 whatever apparent right he, Maxwell, might have acquired to a 
 large tract of land (19,944 acres) in Virginia, under a sale of the 
 same, made in October, 1845, by the sheriff of Ritchie County, for 
 taxes amounting to $30.03, accrued for 1841-2-3-4, and the deeds 
 executed upon such sale. 
 
 The court below dismissed the bill. 
 
 Mr. Justice FIELD, after stating the case, Delivered the opinion of 
 the court as follows: 
 
 The relief sought by the bill in this case is put upon three 
 grounds : 
 
 1st. That the sale was made at a grossly inadequate price. 
 
 2d. That the entire tract was sold in one body; and 
 
 3d. That competition at the sale was prevented by the fraudulent 
 declaration of the defendant, made to effect that purpose, that the 
 complainant would redeem the land from the purchasers. 
 
 The inadequacy of the price given at the sale of land for unpaid 
 taxes thereon, does not constitute a valid objection to the sale. The 
 taxes levied upon property generally bear a very slight proportion 
 to its value, and of necessity the whole property must be sold, if a 
 sum equivalent to the amount of the taxes is not bid for a portion 
 of the premises. 
 
 The sale of the entire tract in one body would have vitiated the 
 proceeding, if bids could have been obtained upon an offer of a part 
 of the property. In this case the answer avers, and the proof shows, 
 that the sheriff offered to sell a part of each tract without receiving
 
 510 SALE OF LAND FOR UNPAID TAXES. 
 
 a bid, and it was only then that the entire tract was put up and 
 struck off to the defendant. 
 
 The case must, therefore, turn upon the last ground, the alleged 
 fraudulent declaration of the defendant at the sale, to prevent com- 
 petition. 
 
 The allegation of the bill is, that at the time the land was offered 
 for sale a great many persons were present with a view to pur- 
 chase small tracts for farming purposes, but the defendant stated to 
 them that the complainant would redeem his land from the pur- 
 chasers, and in that way put down all competition, and had the 
 entire property struck off to him for the amount of the taxes; and 
 that this conduct was pursued to enable him to buy without com- 
 petition, for a trifling amount, all the land of the complainant. 
 
 The answer of the defendant to the allegation is evasive and un- 
 satisfactory. It is that he has no recollection of making the state- 
 ment averred, nor does he believe he did, and that he believes the 
 charge to be untrue. 
 
 Turning now to the testimony presented by the record, we find 
 that the allegation of the bill is sufficiently established. 
 
 Such being the case there is no doubt that relief should be 
 granted the complainant. It is essential to the validity of tax sales, 
 not merely that they should be conducted in conformity with the 
 requirements of the law, but that they should be conducted with en- 
 tire fairness. Perfect freedom from all influences likely to prevent 
 competition in the sale should be in all such cases strictly exacted. 
 The owner is seldom present, and is generally ignorant of the pro- 
 ceeding until too late to prevent it. The tax usually bears a very 
 slight proportion to the value of the property, and thus a great 
 temptation is presented, to parties to exclude competition at the 
 sale, and to prevent the owner from redeeming when the sale is 
 made. The proceeding, therefore, should be closely scrutinized, and 
 whenever it has been characterized by fraud or unfairness should 
 be set aside, or the purchaser be required to hold the title in trust 
 for the owner. 
 
 When the objections to a tax deed consist in the want of con- 
 formity to the requirements of the statute in the proceedings at the 
 sale or preliminary to it, or in the assessment of the tax, or in any 
 like particulars, they may be urged at law in an action of ejectment, 
 whether the deed be the ground upon which the recovery of tho 
 premises is sought by the purchaser, or be relied upon to defeat a
 
 PARKER V. OVERMAN. 511 
 
 recovery by the owner. In some instances equity will interpose in 
 cases of this kind, as where the deed is by statute made evidence of 
 title in the purchaser, or the preliminary proceedings are regular 
 upon their face, and extrinsic evidence is required to show their in- 
 validity. Where, however, the sale is not open to objections of this 
 nature, but is impeached for fraud or unfair practices of officer or 
 purchaser, to the prejudice of the owner, a court of equity is the 
 proper tribunal to afford relief. Thus in Dudley v. Little, (2 Ham- 
 mond 504), equity relieved against a tax sale and deed, where there 
 had been a combination among several persons that one of them 
 should buy in the land to prevent competition. (See also Yancey 
 v. Hopkins, 1 Mumford 419; Rowland v. Doty, Harrington's Chan- 
 cery, 3; Bacon v. Conn, 1 Smedes & Marshall's do. 348.) 
 
 It follows from the views expressed that the complainant is en- 
 titled to a release from the defendant of all the right and interest 
 acquired by him under the tax deeds in the property owned by the 
 complainant at the time of the sale. The decree of the court below 
 will therefore be REVERSED, and the cause remanded with directions 
 to enter a decree in accordance with this opinion. 
 
 Decree accordingly. 
 
 PARKER V. OVERMAN. 
 
 Supreme Court of tlie United States. December, 1855. 
 18 Howard 137. 
 
 Mr. Justice GRIER delivered the opinion of the court. 
 
 As some doubts were entertained and have been expressed by 
 some members of the court, as to its jurisdiction in this case, it will 
 be necessary to notice that subject before proceeding to examine the 
 merits of the controversy. It had its origin in the state court of 
 Dallas county, Arkansas, sitting in chancery. It is a proceeding 
 under a statute of Arkansas, prescribing a special remedy for the 
 confirmation of sales of land by a sheriff or other public officer. Its 
 object is to quiet title. The purchaser at such sales is authorized 
 to institute proceedings by a public notice in some newspaper, de- 
 scribing the land, stating the authority under which it was sold, 
 and "calling on all persons who can set up any right to the lands 
 so purchased, in consequence of any informality, or any irregularity 
 or illegality connected with the sale, to show cause why the sale so 
 made should not be confirmed."
 
 51-2 SALE OF LAND FOR UNPAID TAXES. 
 
 In case no one appears to contest the regularity of the sale, the 
 court is required to confirm it, on rinding certain facts to exist. But 
 if opposition be made, and it should appear that the sale was made 
 "contrary to law," it became the duty of the court to annul it. The 
 judgment or decree, in favor of the grantee in the deed, operates 
 "as a complete bar against any and all persons who may thereafter 
 claim such land, in consequence of any informality or illegality in 
 the proceedings." 
 
 In the case before us, the proceeding, though special in its form, 
 is in its nature but the application of a well-known chancery rem- 
 edy; it acts upon the land, and may be conclusive as to the title of 
 a citizen of another State. He is therefore entitled to have his suit 
 tried in this court, under the same conditions as in other suits or 
 controversies. 
 
 What we have already stated sufficiently shows the nature of the 
 present controversy. The decree appealed from "adjudges the abso- 
 lute title to the land to pass and be confirmed to, and vest in, said 
 William Overman, his heirs, &c., free, clear, and discharged from 
 the claim of said defendants, and all persons whatsoever; and that 
 the said sale thereof for taxes, so made by the sheriff of Dallas 
 county to said Overman, is hereby confirmed in all things, and said 
 defendants perpetually enjoined from setting up or asserting any 
 claim thereto, &c." 
 
 The plaintiffs in error allege that this decree is erroneous, and 
 should have been for the defendants below. 
 
 As the present controversy is for the purpose of giving an oppor- 
 tunity "to all persons who can set up any right or title to the land 
 so purchased, in consequence of any informality or illegality con- 
 nected with such sale," to contest its validity, it would be absurd to 
 make the deed, whose validity is in question, conclusive evidence of 
 that fact. Consequently, the statute enacts that in this proceeding 
 "the deed shall be taken and considered by the court as sufficient 
 evidence of the authority under which said sale was made, the de- 
 scription of the land, and the price at which it was purchased. The 
 deed is to be received as prima facie evidence of these three facts, 
 and casts the burden of proof as to them on the defendant. The 
 term "sufficient" is evidently used in the statute as a synonym for 
 "prima facie" and not for "conclusive." 
 
 In judicial sales under the process of a court of general jurisdic- 
 tion, where the owner of the property is a party to the proceedings,
 
 PARKER V. OVERMAN. 513 
 
 and has an opportunity of contesting their regularity at every step, 
 such objections cannot be heard to invalidate or annul the deed in 
 a collateral suit. But one who claims title to the property of an- 
 other under summary proceedings where a special power has been 
 executed, as in case of lands sold for taxes, is bound to show every 
 fact necessary to give jurisdiction and authority to the officer, and 
 a strict compliance with all things required by the statute. 
 
 The principal objection to the regularity of the sale in this case, 
 and the only one necessary to be noticed, is, that the land was not 
 legally assessed. A legal assessment is the foundation of the author- 
 ity to sell; and if this objection be sustained, it is fatal to the deed. 
 
 In order to qualify the sheriff to fulfil the duties of assessor, the 
 statute requires that, "on or before the tenth day of January, in 
 each year, the sheriff of each county shall make and file in the 
 office of the clerk of the county an affidavit in the following form," 
 &c. : "And if any sheriff shall neglect to file such affidavit within 
 the time prescribed in the preceding section, his office shall be 
 deemed vacant, and it shall be the duty of the clerk of the county 
 court, without delay, to notify the governor of such vacancy," &c. 
 
 The statute requires, also, "that on or before the 25th day of 
 March, in each year, the assessor shall file in the office of the clerk 
 of the county the original assessment, and immediately thereafter 
 give notice that he has filed it," &c. This notice is required, that 
 the owner may appeal to the county court "at the next term after 
 the 25th day of March, and have his assessment corrected, if it be in- 
 correct/' If the assessor shall fail to file his assessment within the 
 time specified by this act, he is deemed guilty of a misdemeanor 
 and subjected to a fine of five hundred dollars. 
 
 These severe inflictions upon the officer, for his neglect to comply 
 with the exigencies of the act, indicate clearly the importance at- 
 tached to his compliance in the view of the legislature, and that a 
 neglect of them would vitiate any subsequent proceedings, and put 
 it out of the power of the sheriff to enforce the collection of taxes 
 by a sale of the property. 
 
 The record shows that Peyton S. Bethel, the then sheriff of the 
 county of Dallas, did not file his oath as assessor on or before the 
 10th of January, as required by law. He did file an oath on the 
 15th of March, but this was not a compliance with the law, and 
 conferred no power on him to act as assessor. On the contrary, by 
 his neglect to comply with the law, his office of sheriff became ipso 
 facto vacated, and any assessment made by him in that year was 
 void, and could not be the foundation for a legal sale. The neglect, 
 33
 
 514 SALE OF LAND FOR UNPAID TAXES. 
 
 also, to file his assessment and give immediate notice on the 25th 
 of March, so that the purchaser might have his appeal at the next 
 county court, was an irregularity which would have avoided the sale 
 even if the assessment had been legally made. 
 
 The statute makes the time within which these acts were to be 
 performed material; and a strict and exact compliance with its 
 requirements is a condition precedent to the vesting of any author- 
 ity in the officer to sell. 
 
 We are of opinion, therefore, that the sale of the land of the ap- 
 pellants was "contrary to law," and that the deed from Edward M. 
 Harris, sheriff and collector of Dallas county, to William Overman, 
 set forth and described in the pleadings and exhibits of this case, is 
 void, and should be annulled. 
 
 II. REDEMPTION. 
 GAULT'S APPEAL. 
 
 Supreme Court of Pennsylvania. 1859. 
 88 Pennsylvania State, 94' 
 
 Appeal from the District Court of Philadelphia. 
 
 This was an appeal by Henry W. Gault from the decree of the 
 court below, directing him to reconvey to William L. Schaffer, 
 Charles J. Ellis, and Samuel T. Roberts, certain lots of ground in 
 the city of Philadelphia, which had been sold by the sheriff, under 
 a municipal claim. 
 
 The opinion of the court was delivered by 
 
 WOODWARD, J. The question that lies at the bottom of this case 
 is, whether the llth section of the Act of Assembly of 13th May, 
 1856, P. L. 567, giving owners of lots in Philadelphia two years to 
 redeem from sales made for municipal claims, is to be strictly or 
 liberally construed. 
 
 The counsel for the appellant insist, that however just and reason- 
 able this enactment may be in its general operation, yet it ought to 
 be so strictly construed as not to embrace this case, because when 
 the sheriff's sale was made under which he claims, the act of 23d 
 January, 1849, was in force, which allowed but one year for re- 
 demption; and to apply the Act of 1856 to this sale, would be to
 
 GAULT'S APPEAL. 515 
 
 give it a retroactive and unconstitutional operation. They consider 
 this a sufficient reason to force us upon a strict construction of the 
 statute, and then they argue, with conclusive effect, that neither the 
 parties nor the case are within the statute. 
 
 But are we shut up to a strict construction of the enactment? 
 What is its nature and tendency? If we apply it to the case before 
 us, do we give it retroactive effect, or render it unconstitutional? 
 
 These are interesting and important questions, and we have given 
 them a very attentive consideration. 
 
 The enactment is a redemption law. It gives to the owner of a 
 vacant lot sold for taxes in Philadelphia, the same time for redemp- 
 tion that the Act of 1815 gives to the owner of unseated lands 
 sold for taxes in the rural counties. It is, therefore, favorable to 
 the rights of property, and congenial to the spirit of our general 
 legislation. The right of the government to authorize the seizure 
 and sale of land without notice to the owner, was seriously doubted, 
 and sometimes stoutly denied, in the early history of tax sales in 
 Pennsylvania; and the only ground on which it can be maintained, 
 is the absolute sovereignty of the State in the exercise of its taxing 
 power. 
 
 But it is a severe exercise of power. To divest ownership, with- 
 out personal notice, and without direct compensation, is the instance 
 in which a constitutional government approaches most near to an 
 unrestrained tyranny. Whatever tends to modify this right is favor- 
 able to the citizen, and ought to be liberally construed, on the prin- 
 ciple that remedial statutes are to be beneficially expounded. 
 
 Redemption is the last chance of the citizen to recover his rights 
 of property, and yet, it is here, at the point of the owner's extrem- 
 ity, the appellant's argument would have us apply strictness of con- 
 struction to a statute made for the owner's relief. The owner may 
 redeem, says the statute; but, says the appellant, those who offered 
 to redeem on the 15th September, 1858, were not owners at the 
 time of the sale, but became owners afterward. 
 
 The purchaser shall reconvey, says the statute; but the appellant 
 points to the fact, that Eaimond was the purchaser at the sheriff's 
 sale, and conveyed to him, Gault, who is not the purchaser within 
 the meaning of the statute, and therefore not subject to a decree to 
 reconvey. The act applies to sales by the City, and the appellant 
 says this was a sale by the district of Penn. 
 
 Now, however, we might be disposed to lay hold of such criticism 
 to prevent the operation of a statute which proposed to divest titles, 
 they are not to arrest a statute which has for its object the restora-
 
 516 SALE OF LAND FOR UNPAID TAXES. 
 
 iion of a title to its real owner. This would be hypercriticism in 
 the wrong direction. We hold him to be an owner within the statute 
 who is such when he offers to redeem. The sale left in the former 
 owner an equity of redemption at the least, and that might be con- 
 veyed like any other estate, and the grantee took it with all the 
 rights and capacities of the grantor. He is therefore the "owner" 
 who holds the title at the moment of redemption. Nor is the stat- 
 ute to be defeated by the purchaser at the public sale conveying his 
 rights to another before the time of redemption. If Eaimond took 
 from the sheriff a legal title, and conveyed it to Gault, it was, never- 
 theless, a defeasible title liable to be defeated by a redemption 
 within time as much so in the hands of Gault as in those of Rai- 
 mond. And it was a sale by the city. The Consolidation Act had 
 made the district of Penn part of the city, and on the face of the 
 record the proceedings were in the corporate name of the district to 
 the use of the city. At the time of the sale, therefore, the city 
 stood as the beneficial party upon the record and that was enough 
 to answer the terms of the statute. 
 
 Thus it is apparent, that it does not require a very large stretch 
 of construction, to bring the case within this remedial statute; and 
 such as it does require, we feel quite justified in making. 
 
 For these reasons we are clear in ruling that this was not a sale 
 made prior to the Act of 1856, and that we give the act no retro- 
 active effect in applying it as we do. 
 
 The decree is affirmed. 
 
 But to redeem the owner must bring himself within the provisions of the 
 statute. Thus he must redeem within the time provided. Nothing will excuse 
 delay beyond the allotted time, not even the existence of civil war. Finley 
 v. Brown, 22 Iowa 538. The only possible excuse would be fraud on the part 
 of the tax purchaser. Blanton v. Ludding, 30 La. An. 1232. 
 
 BENNETT V. HUNTER. 
 
 Supreme Court of the United States. December, 1869. 
 9 Wallace 326. 
 
 By an act of August 5th, 1861, (12 Stat. at Large 294) passed in 
 quite the early part of the late rebellion, Congress having laid a 
 duty on incomes, imposed a direct tax of $20,000,000 per annum 
 upon the whole of the United States, of which a certain sum was 
 apportioned to Virginia
 
 BENNETT V. HUNTER. 517 
 
 Afterwards, however, the rebellion having now become widespread, 
 and assumed far greater magnitude, an act of June ?th, 1862, (Ib. 
 422), declared that when in any State the civil authority of the 
 government of the United States should be obstructed by insurrec- 
 tion or rebellion, so that the provisions of the former statute could 
 not be peaceably executed, the direct taxes apportioned by that stat- 
 ute should be apportioned and charged in each State wherein -the 
 civil authority was thus obstructed, upon all the lands situate there- 
 in, respectively, &c., as the same were enumerated and valued under 
 the last assessment and valuation thereof made under the authority 
 of said state or territory previous to January 1st, 1861; and every 
 parcel of the said lands, according to the said valuation, was declared 
 to be charged, by virtue of the act itself, with the payment of so 
 much of the whole tax laid and apportioned by said act upon the 
 State wherein the same was situate, as should bear the direct pro- 
 portion to the whole amount of the direct tax apportioned to said 
 State as the value of said parcels of land should, respectively, bear 
 to the whole valuation of the real estate in the said State, according 
 to the said assessment and valuation made under the authority of 
 the same, and in addition thereto with a penalty of fifty per centum 
 of said tax. 
 
 The 3d section allowed the owner or owners of the lands, within 
 sixty days after the amount of the tax charged thereon, respectively, 
 should have been fixed by a board of tax commissioners (the ap- 
 pointment of which was provided for by the act), to pay the same 
 to the commissioners,, and take a certificate thereof, by virtue of 
 which the lands should be discharged from the tax. 
 
 Under this act of the 7th of June, 1862 the second of the acts 
 above mentioned a tax was assessed upon a tract of land situate in 
 Alexandria County, Virginia, of which one B. W. Hunter was then 
 owner for life, the property in remainder being in his son, and de- 
 fault having been made in payment, the land was advertised for 
 sale. After advertisement, but before sale, the amount of the taxes, 
 expenses, penalties, and costs (the whole being within $100), was 
 tendered ~by a tenant in occupation of about half of the premises, 
 to the commissioners appointed for the collection of taxes under the 
 act, who refused to receive the money, upon the ground that the 
 tender was not made by the owner of the land in person. The land 
 was then, January llth, 1864, sold, and one Chittenden became the 
 purchaser, and received a certificate from the commissioners, re- 
 citing the sale and his purchase for $8000. He thereupon leased
 
 518 SALE OF LAND FOE UNPAID TAXES. 
 
 the property to one Bennett, who went into possession. After the 
 close of the war, Hunter, the son, who had served as an officer in 
 the rebel army, but against whose property no proceedings for con- 
 fiscation had been instituted, and whose estate in remainder had now 
 become absolute, brought suit in one of the State courts of Virginia 
 to recover possession of the land. No question was made of his 
 right to recover if his title was not divested by the sale for taxes. 
 The court in which the suit was brought gave judgment in his 
 favor, and the judgment being affirmed by the Supreme Court of 
 Appeals of the commonwealth, the other side brought the case here 
 for review. 
 
 The CHIEF JUSTICE (CHASE) delivered the opinion of the court. 
 
 The case requires the consideration and determination of one 
 point only, namely, whether the commissioners under the act could 
 make a sale for taxes, notwithstanding a previous tender of the 
 amount due? 
 
 In order to a right understanding of the real point in contro- 
 versy, however, it will be useful to notice briefly the occasion and 
 the objects of the enactments which have given rise to it. 
 
 The necessities of the war arising from the rebellion, demanded 
 immediate provision of adequate funds. For this purpose Congress 
 increased the duties on customs, imposed a duty on incomes, and 
 laid a direct tax of twenty millions of dollars upon lands. This 
 latter tax was apportioned, agreeably to the direction of the Con- 
 stitution, among the several States, in proportion to their respect- 
 ive numbers; and it was provided that, if the act could not be car- 
 ried into execution in any State in consequence of rebellion, it 
 should be the duty of the President to proceed, as soon as the au- 
 thority of the United States should be re-established therein, to col- 
 lect both the land tax and the income tax, with six per cent interest. 
 
 The income tax thus imposed has never been collected; but pro- 
 vision was made by the act of June 7th, 1862, for the collection of 
 the land tax in the insurgent States. This act, or some similar 
 provision, to enable the President to perform the duty devolved 
 upon him by the act of 1861. The acts of 1861 and 1862 are, there- 
 fore, to be construed together. The general object of both was the 
 same, namely, the raising of revenue by a tax on land. The first 
 prescribed a mode of collection where the authority of the General 
 Government was acknowledged, and no serious obstacle existed to 
 the execution of the law; the second directed the mode of collection 
 where this authority had been overthrown bv insurrection, and had
 
 BENNETT V. HUNTER. 519 
 
 been sufficiently re-established to make collection, to some extent at 
 least, practicable. 
 
 The provisions of the latter were necessarily adapted to the pecul- 
 iar circumstances in which it was to be executed, and were in most' 
 respects more stringent than those of the former. The first act, for 
 example, directed the assessment of lands by assessors to be ap- 
 pointed under it; the second adopted the valuation made under the 
 authority of the several States prior to the rebellion, and charged 
 directly upon each parcel of lajid its proportion of the tax appor- 
 tioned to the State. Under the first act, delinquent tax-payers were 
 permitted, at any time after advertisement for sale, and before ac- 
 tual sale, to pay the amount assessed with ten per cent penalty, and 
 thus relieve their lands. The second act imposed on each tract, with- 
 out respect to delinquency on the part of the owner, a penalty of 
 fifty per cent in addition of its proportion of the tax upon the 
 State, and, it is contended, allowed payment only within sixty days 
 after assessment. In the earlier act indulgent provision was made 
 for redemption after sale; in the latter, onerous conditions were 
 imposed on such redemption. 
 
 Without adverting further to particular points of difference be- 
 tween the two acts, it may be observed that their most striking con- 
 trast was in their practical application. 
 
 The several adhering States, under the act of 1861, assumed and 
 paid their respective quotas, and collected the amount of the tax 
 from their own citizens under their own laws, so that in those States 
 the machinery of the law was never really put in action; while in 
 the insurgent States the act of 1862, so far as it was executed at 
 all, was carried into effect according to its terms by the officials of 
 the National government. In this way, the citizens of the adhering 
 States were relieved from the process of collection and from pen- 
 alties and forfeitures for non-payment, while the citizens of the in- 
 surgent States who could not be thus relieved were exposed to their 
 unmitigated operation. 
 
 Keeping these circumstances in view, we are to consider the effect 
 of the sale for taxes made, as we have already stated, to the lessor of 
 the plaintiff. And this must depend mainly upon the construction 
 to be given to the fourth section of the act of 1862. 
 
 This section provides "that the title of, in, and to each and every 
 piece and parcel of land upon which said tax has not been paid as 
 above provided, shall thereupon become forfeited to the United 
 States; and upon the sale hereinafter provided for shall vest in the 
 United States, or in the purchasers at such sale, in fee simple, free
 
 520 SALE OF LAND FOE UNPAID TAXES. 
 
 and discharged from all prior liens, incumbrances, right, title, and 
 claim whatsoever." 
 
 And we are first to consider whether the first clause of this sec- 
 tion, proprio mgore, worked a transfer to the United States of the 
 land declared to be forfeited. 
 
 Now the general principles of the law of forfeiture seem to be 
 inconsistent with such a transfer. Without pausing to inquire 
 whether in any case, the title of a citizen to his land can be di- 
 vested by forfeiture and vested absolutely in the United States, 
 without any inquisition of record or some public transaction equiv- 
 alent to office found, it is certainly proper to assume that an act of 
 sovereignty so highly penal is not to be inferred from language 
 capable of any milder construction (Fairfax's Devisee v. Hunter's 
 Lessee, 7 Cranch.625). In the case of lands forfeited by alienage 
 the king could not acquire an interest in the lands except by in- 
 quest of office (3 Bl. Com. 258). And so of other instances, where 
 the title of the sovereign was derived from forfeiture. And in the 
 case of The United States v. Eepentigny, (5 Wallace 265), where 
 the forfeiture to the government of lands arose from omission to 
 perform the conditions of the grant, this court held that before the 
 forfeiture could be consummated by reunion of the land with the 
 public domain, "a judicial inquiry should be instituted, or, in the 
 technical language of the common law, office found, or its legal 
 equivalent," should take place. The court said further that "a legis- 
 lative act directing the possession and appropriation of the land is 
 equivalent to office found." 
 
 Applying these principles to the case in hand, it seems quite clear 
 that the first clause of the fourth section was not intended by Con- 
 gress to have the effect attributed to it, independently of the second 
 clause. It does not direct the possession and appropriation of the 
 land. It was designated, rather, as we think, to declare the ground 
 of the forfeiture of the title, namely, non-payment of taxes, while 
 the second clause was intended to work the actual investment of the 
 title through a public act of government in the United States, or 
 in the purchaser at the tax sale. The sale was the public act, which 
 is the equivalent of office found. What preceded the sale was merely 
 preliminary, and, independently of the sale, worked no divestiture 
 of title. The title, indeed, was forfeited by non-payment of the 
 tax; in other words, it became subject to be vested in the United 
 States, and, upon public sale, became actually vested in the United 
 States or in any other purchaser; but not before such public sale.
 
 3ENNETT V. HUXTER. 521 
 
 It follows that in the case before us the title remained in the ten- 
 ant for life with remainder to the defendant in error, at least until 
 sale; though forfeited, in the sense just stated, to the United 
 States. 
 
 But it has been insisted that the right to pay the tax and relieve 
 the land from sale expired at the end of sixty days after the amount 
 was fixed by the proper authority. It does not appear when the 
 amount was fixed, or when the sixty days ended. It may be in- 
 ferred, perhaps, from the fact of sale, that default for payment had 
 continued at least through that time, for otherwise there could have 
 been no power to sell. 
 
 If this inference be admitted, however, it by no means follows 
 that the right to pay the tax and have the land discharged from it 
 expired with the sixty days. It is more reasonable to suppose that 
 this right remained as long as the title of the land remained in the 
 owner that is, until after sale. And this view is confirmed by 
 reference to another part of the act. The seventh section gives di- 
 rection as to sales, the issue of certificates of sale to purchasers, 
 and proceedings for redemption after sale, and then provides that 
 "the certificate of sale shall only be affected, as evidence of the 
 regularity and validity of sale, by establishing the fact that the land 
 was not subject to taxes, or that the taxes had been paid previous 
 to the sale, or that the property had been redeemed according to 
 the provisions of this act." This provision makes it clear that proof 
 of payment of taxes prior to the sale invalidates the certificate, and 
 this could not be unless the right to pay the tax continued until the 
 sale. This seems to leave no doubt on the point that the right to 
 make such payment was not strictly limited to sixty days after the 
 fixing of the amount of the tax. 
 
 But to whom did the right to make this payment belong? The 
 obvious answer is, to the owner, either acting in person or through 
 some friend or agent, compensated or uncompensated. The terms 
 of the act are, that the owner or owners may pay; and it is familiar 
 law that acts done by one in behalf of another are valid if ratified 
 either expressly or by implication, and that such ratification will be 
 presumed in furtherance of justice. 
 
 But it is insisted that the right of payment is limited by the act 
 to the actual owner in his proper person. But we perceive no such 
 limitation in its terms. On the contrary, the fact that the privilege 
 of redemption after sale is limited to the owner or the loyal person 
 having a lien or other interest, appearing in proper person and tak- 
 ing a prescribed oath, appears to us to afford an irresistible infer-
 
 522 SALE OF LAND FOR UNPAID TAXES. 
 
 ence that the right of payment before sale is not so limited. It is 
 a right which, under the act, belongs to the owner, and no oath is 
 required in order to its exercise. It is a right to be exercised under 
 the act as a law for raising revenue. It is expressly distinguished 
 from the privilege of redemption after sale and complete divestiture 
 of title, which is accorded upon very different principles, and in 
 pursuance of a very different policy. We cannot doubt that it might 
 properly be exercised by the owner in person, or through any other 
 person willing to act in his behalf and not disavowed by him. 
 
 The application of these principles decides the case before us. The 
 title and possession of the land, at the time of assessment, was in 
 B. W. Hunter for life, with remainder in fee to his son, the defend- 
 ant in error. The life estate terminated, and the fee became vested 
 in 1864. The sum due the United States for taxes, penalty, and 
 costs, was tendered to the commissioners before sale, and it was their 
 duty to accept it. The tender was not objected to as insufficient, 
 but was refused solely because not made by the owner in person. 
 The refusal not being warranted by the act, the tender must be held 
 good. The certificate of sale under which the plaintiff in error 
 claims title cannot, therefore, be sustained. The sale must be re- 
 garded in law as having been made after the payment of the tax, and 
 as insufficient to vest the title to the land in the purchaser. 
 
 It follows that ,the judgment of the court of appeals of Virginia 
 must be 
 
 Affirmed. 
 
 III. EFFECT OF TAX DEED. 
 TURNER V. SMITH. 
 
 Supreme Court of the United States. December, 1871. 
 14 Wallace 553. 
 
 Hannon being owner in fee simple and free from lien of a 
 house and lot in Alexandria, granted out of it by an old-fashioned 
 formal ground-rent deed, with clause of right of re-entry, etc., in 
 1819, a rent charge of $224 to Moore, with right of distress, re-entry, 
 etc. In 1821 Hannon died insolvent, and the rent not being paid, 
 Moore "took possession" of the house again, though in what mode 
 or whether with any of the requisites of a common law re-entry did 
 not appear.
 
 TURNER V. SMITH. 523 
 
 In 1825, being still in possession, he conveyed the rent charge, 
 describing it in form, to one Irwin, and Irwin in 1854 conveyed 
 it, with the lot on which it was charged to R. M. and J. M. Smith; 
 Irwin and Smith, each respectively, being in possession of the 
 house and lot, after they became owners of the rent, as Moore had, 
 himself, been after Hannons decease; and each paying the taxes 
 assessed against the house and lot while he held it. 
 
 In May, 1861, on the outbreak of the rebellion, Smith abandoned 
 his residence and went within the rebel lines. 
 
 On the 5th of August of that year (12 Statutes at Large 294), 
 Congress passed an act laying a "direct tax of $20,000,000 annually 
 upon the United States," and apportioning the same in a manner 
 which is set forth, among the several States.* The act provided 
 particularly for assessing and collecting of the tax, directing that 
 it should be collected from persons at their dwellings, in the first 
 instance; and if not paid should be obtained by distress and sale of 
 personal property; and if persons could not be found, and there 
 was no personal property, then, "by public sale of so much of the 
 said property as shall be necessary to satisfy the taxes due thereon, 
 together with an addition of 20 per cent." The act then provided 
 for giving a deed, but did not in any part declare what should be 
 the effect of the sale or deed, or that it should divest liens of any 
 kind. 
 
 The< act authorized each State to assume, assess, collect, and pay 
 its quota of the tax; and the loyal States did do this. In the rebel 
 States nothing could be done. 
 
 On the 7th of June, 1862 (Ib. 423), Congress passed another act, 
 entitled "An Act for the Collection of Direct Taxes in Insurrec- 
 tionary Districts, &c." 
 
 On the 6th of February, 1863 (12 Stat. at Large, 640), Congress 
 passed a short "act to amend" this act, and entitled "An Act for 
 the Collection of Direct Taxes in Insurrectionary Districts, &c." 
 
 With these statutes on the statute-book, and the property in Alex- 
 andria, mentioned at the beginning of this statement, being assessed 
 on the land-book of Virginia, on the 1st of March, 1864, at $3,500, 
 the tax commissioners of the United States (not themselves bidding 
 at all) sold it, in professed pursuance of the acts of Congress, for 
 $1,750 (less than two-thirds, $2,333, of its assessed value) to one 
 Turner, describing it as a house on Royal Street, between King and 
 Prince Streets, at Alexandria, in the State of Virginia, "said to have
 
 524 SALE OF LAND FOE UNPAID TAXES. 
 
 belonged to R. M. and J . M. Smith" and charged to them on the 
 land-book of the State aforesaid for the year 1860. 
 
 The rebellion being suppressed the Smiths never having offered as 
 "holders of a valid lien" or otherwise to redeem brought suit in 
 proper form against Turner to recover certain arrears of the ground- 
 rent. Turner claimed title to the lot free of rent under the sale 
 for taxes made by authority of the several acts of Congress already 
 mentioned for imposing and collecting a direct tax. The decis- 
 ion of the court where the suit was brought was against the title 
 thus set up, that is to say, it was in favor of the Smiths, and their 
 rent, and this decision being affirmed in the highest court of the 
 State (18 Grattan 835) the case was here for review. 
 
 Mr. Justice MILLER delivered the opinion of the court. 
 
 Two propositions are relied on to defeat the title under the sale for 
 taxes. 
 
 2. That the plaintiffs below in whose favor the judgment was 
 rendered, were the owners of a rent charge on the land, which was 
 not extinguished by the sale for the unpaid taxes. 
 
 2. In the act of August 5, 1861, apportioning the tax of $20,000,- 
 <)00 among the States, according to population, provision is made for 
 its collection out of the lands within those States, if not paid by 
 the States. Under the provisions of that act it might admit of some 
 doubt whether the tax was in its essence a tax on the land, and on 
 all the various estates in which the fee may have been divided, or 
 was a tax on the owner of the land, and levied on the interest of 
 the owner in it, and on no other subordinate or incorporeal interest. 
 But no tax was ever collected, or any land sold under that act. The 
 States which, in the war for the support of which this tax was levied 
 supported the General Government, assumed and paid the portion 
 allotted to each. With regard to the States which were in insur- 
 rection, Congress passed a new law for the assessment and collec- 
 tion of their portion, under which the sale in this case was made. 
 That act, the statute of 1862, to which we have already referred, 
 directed the commissioners to whom the collection of the tax was 
 intrusted, to take the last assessment of the value of the lands made 
 in each State for State taxation as the basis on which the tax 
 charged to that State by the act of 1861 should be apportioned 
 among the several lots and parcels within that State, and a penalty 
 of fifty per cent was added in each case for non-payment. The 
 President was directed to declare by his proclamation what States
 
 TURNER V. SMITH. 525 
 
 or parts of States were in insurrection, and "thereupon the said 
 several lots or parcels of land became charged respectively with 
 their respective portions of said direct tax, and the same, together 
 with the penalty, became a lien thereon, without any further pro- 
 ceedings whatever." Section three gave a time in which this tax 
 might be paid, and section four proceeds to say that "the title of, in 
 and to each and every parcel of land upon which said tax has not 
 been paid as above provided, shall thereupon become forfeited to the 
 United States, and upon the sale hereinafter provided for shall vest 
 in the United States, or in the purchaser at such sale, in fee simple, 
 free and discharged from all liens, incumbrances, right, title, and 
 claims whatsoever." 
 
 There is nothing in the statute which requires the tax commission- 
 ers to hunt up the owner, or to make the tax out of personal property 
 of his, or which may be found upon the land. It is clearly a 
 direct tax on the land, and on all the estates, interests, and claims 
 connected with or growing out of the land. All this was forfeited 
 to the United States on non-payment of the taxes, and passed with 
 the sale to the purchaser, subject alone to the right of redemption, 
 which the law allowed. In that respect it was a defeasible title, 
 but in all other respects perfect, complete and entire. The language 
 of the statute is explicit to this purport, and the policy and neces- 
 sity of the government, which could not look after the fugitive and 
 hostile owners, required such a tax, and such a mode of collecting it. 
 
 We are of opinion, therefore, that the sale being a valid one the 
 rent charge of the defendant in error was cut off and destroyed by 
 it. 
 
 JUDGMENT REVERSED, and the cause remanded for further pro- 
 ceedings IN CONFORMITY TO THIS OPINION. 
 
 But if land is assessed merely to a resident owner, a report is made of 
 his delinquency and there are no proceedings in rent; what is sold may be 
 the interest of the owner only. Dunn v. Winston, 31 Miss. 135.
 
 526 SALE OF LAND FOE UNPAID TAXES. 
 
 WILLIAMS V. PAYTON'S LESSEE. 
 
 Supreme Court of the United States. February 1819. 
 4 Wheaton, 77. 
 
 The opinion of the court was delivered by Mr. Chief Justice 
 MARSHALL. 
 
 This is an ejectment brought in the Circuit Court for the district 
 of Kentucky, by the original patentee, against a purchaser at a sale 
 made for non-payment of the direct tax, imposed by the act of Con- 
 gress of the 14th of July, 1793, c. 92. After the plaintiff in the Cir- 
 cuit Court had exhibited iris title, the defendant gave in evidence 
 the books of the supervisor of the district, showing, that the tax 
 on the lands in controversy had been charged to the plaintiffs, and 
 that they had been sold for the non-payment thereof. They also gave 
 in evidence a deed executed by the Marshal of the district, in pur- 
 suance of the act of March 3d, 1804, and proved by Christopher 
 Greenup, the agent of the plaintiff, that there were tenants on the 
 land, and that he did not pay the tax, nor redeem the land. 
 
 Upon this evidence, the Court, on the motion of the plaintiff, 
 instructed the jury, "that the purchaser under the sale of lands for 
 the non-payment of the direct tax, to make out title, must show that 
 the collector had advertised the land, and performed the other 
 requisites of the law of Congress, in that case provided, otherwise he 
 made out no title." The defendants then moved the Court to 
 instruct the jury "that the deed and other evidence produced by them, 
 and herein mentioned, was prima facie evidence that the said land 
 had been advertised, and the other requisites of the law of Congress, 
 as to the duty of the collector, in that respect, had been complied 
 with"; but the Court refused to give the instruction; and, on the 
 contrary, instructed the jury, "that said deed, and other evidence, 
 was not prima facie evidence that the said land had been advertised 
 according to law, nor that the requisites of the law had been com- 
 plied with." 
 
 The defendants excepted to this opinion. The jury found a ver- 
 dict for the plaintiff, and the judgment rendered on that verdict is 
 now before this Court on writ of error. 
 
 As the collector has no general authority to sell lands at his 
 discretion for the non-payment of the direct tax, but a special power 
 to sell in the particular cases described in the act, those cases must 
 exist, or his power does not arise. It is a naked power, not coupled 
 with an interest: and in all such cases, the law requires that every 
 
 ' 

 
 WILLIAMS V. PAYTON'S LESSEE. 527 
 
 pre-requisite to the exercise of that power must precede its exercise-, 
 that the agent must pursue the power, or his act will not be sustained 
 by it. 
 
 This general proposition has not been controverted; but the plain- 
 tiffs in error contend, that a deed executed by a public officer, is 
 prima facie evidence, that every act which ought to precede that 
 deed had preceded it. That this conveyance is good, unless the party 
 contesting it can show that the officer failed to perform his duty. 
 
 It is a general principle, that the party who sets up a title must 
 furnish the evidence necessary to support it. If the validity of a 
 deed depends upon an act in pais, the party claiming under that deed 
 is as much bound to prove the performance of the act, as he would be 
 bound to prove any matter of record on which its validity might de- 
 pend. It forms a part of his title; it is a link in the chain which 
 is essential to its continuity, and which it is incumbent on him to 
 preserve. These facts should be examined by him before he becomes a 
 purchaser, and the evidence of them should be preserved as a neces- 
 sary muniment of title. If this be true in general, is there 
 anything which will render the principle inapplicable to the case of 
 lands sold for the non-payment of taxes? In the act of Congress, 
 there is no declaration that these conveyances shall be deemed prima 
 facie evidence of the validity of the sale. Is the nature of the 
 transaction such, that a Court ought to presume in its favor anything 
 which does not appear, or ought to relieve the party claiming under 
 it from the burthen of proving its correctness? 
 
 The duties of the public officer are prescribed in the 9th, 10th 
 and 13th sections of the act of the 14th of July, 1798, c. 92. If these 
 duties be examined, they will be found to be susceptible of complete 
 proof on the part of the officer, and consequently on the part of the 
 purchaser, who ought to preserve the evidence of them, at least, for 
 a reasonable time. Their chief object is to give full notice to the pro- 
 prietor, and furnish him with every facility for the voluntary pay- 
 ment of the tax, before resort should be had to coercive means. In 
 some instances the proprietor would find it extremely difficult, if 
 not impracticable, to prove that the officer had neglected to give 
 him the notice required by law. It is easy, for example, to show 
 that the collector has posted up the necessary notifications in four 
 public places in his collection district, as is required by the 9th sec- 
 tion, but very difficult to show that he has not. He may readily 
 prove that he has made a personal demand on the person liable for 
 the tax, but the negative, in many cases, would not admit of proof. 
 
 The 13th section permits the collector, when the tax shall have
 
 528 SALE OF LAND FOR UNPAID TAXES. 
 
 remained unpaid for the term of one year, having first advertised the 
 same for two months in six different puhlic places within the said 
 district, and in two gazettes in the State, if there be so many, one of 
 which shall be the gazette in which the laws of such State shall be 
 published by authority, if any such there be, to proceed to sell, &c. 
 
 The purchaser ought to preserve these gazettes, and the proof that 
 these publications were made. It is imposing no greater hardship on 
 him to require it, than it is to require him to prove, that a power of 
 atttorney, in a case in which his deed has been executed by an attor- 
 ney, was really given by the principal. But to require from the 
 original proprietor proof that these acts were not performed by the 
 collector, would be to impose on him a task always difficult, and some- 
 times impossible to be performed. 
 
 Although this question may not have been expressly, and in terms 
 decided in this Court, yet decisions have been made which seem to 
 recognize it. In the case of Stead's Executors v. Course (4 Cranch 
 403), in which was drawn into question the validity of a sale made 
 under the tax laws of the State of Georgia, this Court said, "it is 
 incumbent on the vendee to prove the authority to sell." And in 
 Parker v. Rule's Lessee (9 Cranch 64), where a sale was declared to 
 be invalid, because it did not appear in evidence, that the publica- 
 tions required by 'the 9th section of the act, had been made, the 
 Court inferred, that they had not been made, and considered the case 
 as if proof of the negative had been given by the plaintiff in eject- 
 ment. The question, whether the deed was prima facie evidence 
 it is true, was not made in that case ; but its existence was too obvious 
 to have escaped either the Court or the bar. It was not made at 
 the bar, because counsel did not rely on it, nor noticed by the 
 judges, because it was not supposed to create any real difficulty. 
 
 It has been said in argument, that in cases of sales under the tax 
 laws of Kentucky, a deed is considered by the Courts of that State, 
 as prima facie evidence that the sale was legal. Not having seen the 
 case or the law, the Court can form no opinion on it. In construing 
 a statute of Kentucky, the decisions of the Courts of Kentucky would 
 unquestionably give the rule by which this Court would be guided; 
 but it is the peculiar province of this Court to expound the acts of 
 Congress, and to give the rule by which they are to be construed. 
 
 Judgment affirmed with costs. 
 
 As to the conclusiveness of tax deeds see McCready v. Sexton, 29 Iowa 
 356, supra.
 
 CHAPTER XIIL 
 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 I. POLICE AND TAXING POWER., 
 YOUNGBLOOD V. SEXTON. 
 
 Supreme Court of Michigan. October, 1875. 
 32 Michigan, 406. 
 
 COOLEY, J. The bill in this cause was filed to restrain the col- 
 lection from the several complainants of a tax assessed against them 
 separately, in respect to the business in which each is engaged. 
 
 5. The objection which appears to be principally relied upon is, 
 that a tax on the traffic in liquors under this law is equivalent to a 
 license of the traffic, and therefore conies directly in conflict with 
 that provision of the constitution which declares that "the legis- 
 lature shall not pass any act authorizing the grant of license for the 
 sale of ardent spirits or other intoxicating liquors." Const., Art. IV., 
 Sec. 47. 
 
 Does, then, a tax upon the traffic in liquors come within the 
 condemnation of this provision of the constitution, as being equiva- 
 lent to a license of the traffic ? Is it the same in legal effect, or is it 
 the same according to the popular understanding of the term license ? 
 This is the question that presents itself for decision on this branch 
 of the case. 
 
 The popular understanding of the word license undoubtedly is, a 
 permission to do something which without the license would not be 
 allowable. This we are to suppose was the sense in which it was 
 made use of in the constitution. But this is also the legal mean- 
 ing. "The object of a license," says Mr. Justice Manning, "is to 
 confer a right that does not exist without a license." Chilvers v. 
 People, 11 Mich. 43, 49. Within this definition, a mere tax upon 
 the traffic cannot be a license of the traffic, unless the tax confers 
 some right to carry on the traffic which otherwise would not have 
 existed. We do not understand that such is the case here. The 
 34 529
 
 530 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 very act which imposed this tax repealed the previous law, which 
 forbade the traffic and declared it illegal. The trade then became 
 lawful, whether taxed or not ; and this law, in imposing the tax, did 
 not declare the trade illegal in case the tax was not paid. 
 
 So far as we can perceive, a failure to pay the tax no more ren- 
 ders the trade illegal than would a like failure of a farmer to pay 
 the tax on his farm render its cultivation illegal. The State has 
 imposed the tax in each case, and made such provision as has been 
 deemed needful to insure its payment; but it has not seen fit to make 
 the failure to pay a forfeiture of the right to pursue the calling. If 
 the tax is paid, the traffic is lawful; but if not paid, the traffic is 
 equally lawful. There is consequently nothing in the case that 
 appears to be in the nature of a license. The state has provided 
 for the taxation of a business which was found in existence, and the 
 carrying on of which it no longer prohibits; and that is all. 
 
 But it is urged that by taxing the business the state recognizes its 
 lawful character, sanctions its existence, and participates in its 
 profits all of which is within the real intent of the prohibition of 
 license. The lawfulness of the business, if by that we understand 
 merely that it is no longer punishable, and is capable of constituting 
 the basis of contracts, was undoubtedly recognized when the prohibi- 
 tory law. was repealed ; but as the illegality of the traffic depended on 
 that law, so its lawfulness now depends upon its repeal; the tax has 
 nothing to do with it whatever. 
 
 Now it is not claimed, so far as we are aware, that the repeal of 
 the prohibitory law was incompetent; and if not, the mere recogni- 
 tion of the lawfulness of the traffic cannot make the tax or any 
 other law invalid. It is only the recognition of an existing and a 
 conceded fact, and the courts cannot, if they would, refuse to recog- 
 nize it. 
 
 The idea that the state lends its countenance to any particular 
 traffic by taxing it, seems to us to rest upon a very transparent 
 fallacy. It certainly overlooks or disregards some ideas that must 
 always underlie taxation. Taxes are not favors; they are burdens; 
 they are necessary, it is true, to the existence of government, but 
 they are not the less burdens, and are only submitted to because of 
 the necessity. It is deemed advisable to make careful provision to 
 preclude these burdens becoming needlessly oppressive; but it is 
 conceded by all the authorities, that under some circumstances they 
 may be carried to an extent that will be ruinous to individuals. It 
 would be a remarkable proposition, under such circumstances, that a 
 thing 1 is sanctioned and countenanced by the government when this
 
 YOUNGBLOOD V. SEXTON. 531 
 
 burden, which may prove disastrous, is imposed upon it, while, on the 
 other hand, it is frowned upon and condemned when the burden is 
 withheld. . . . And the taxation of a thing may be, and often 
 is when police purposes are had in view, a means of expressing dis- 
 approval instead of approbation of what is taxed. 
 
 There has undoubtedly been felt and expressed a strong senti- 
 mental objection to the doing of anything by the state that even 
 seemed to be a lending of its countenance to a business which the 
 objectors regarded as an evil in itself; especially to the state par- 
 ticipating in the profits of a pernicious trade. But the objection never 
 found expression in laws forbidding the taxation of liquors or of the 
 business of dealing in them. Indeed, in this state liquors have always 
 been taxable as property; and so have been the implements by means 
 of which forbidden games of chance have been carried on. Yet when 
 the keeper of billiard tables is compelled to pay a tax, it can be no 
 defense to him, either in law or in morals, that he is compelled to do 
 so from the profits of an illegal business. To refuse to receive the 
 tax under such circumstances would tend to encourage the business, 
 instead of restraining it; and would not only be unwise because of 
 exempting one man from his fair share of taxation, but also because 
 it would tend to defeat the state policy which forbids games of 
 chance and hazard. The idea that a thing is favored because it is 
 taxed may be examined in the light of the practice of this state in 
 some other particulars. It has always been the custom in apportion- 
 ing taxes by valuation to make some discrimination based on rea- 
 sons of public policy. As an illustration we may mention the case of 
 property devoted to educational or charitable purposes, and which as 
 a rule has been exempted from the general taxation. The general 
 belief has been, that the interests and welfare of the whole community 
 would be best subserved by abstaining from any imposition of the 
 burdens of government upon such property; and the legislature in 
 apportioning the taxes has accepted this general belief and acted 
 upon it. ... While in the selection of subjects for taxation, 
 revenue is to be considered and kept in view, it is impossible to 
 exclude other considerations. In proposing a tax it might always be 
 a question whether it should be imposed upon persons, or upon 
 property by value, and if so, upon what property, or upon business; 
 and if so, what kind of business, or whether it should not be a 
 combination of all these. One method might be the easiest for the 
 collection of the necessary revenue, but most injurious or unequal in 
 its result; one might discourage industry and another encourage it; 
 one might collect the tax from luxuries, and therefore fall mainly
 
 532 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 upon the rich, while another would collect it from necessaries and 
 be oppressive to the poor. The whole question would be quite as much 
 one of policy as of necessity, and a legislator would be unfit for his 
 office who did not look beyond the proposed tax to its probable results. 
 This is especially true in every case where the tax has reference to 
 police as well as revenue. A particular business may then be taxed 
 while others are spared, not only because for any reason it can best 
 bear the burden, but also because such surroundings attach them- 
 selves to the business taxed as to render the discouragement and 
 discipline of heavy taxation wise and politic. In the few cases in 
 which the right to do this has been denied on the ground of inequality, 
 the courts have affirmed it as being beyond question. See Durach's 
 appeal, 62 Penn. St. 491, 494; Fletcher v. Oliver, 25 Ark. 289; State 
 ir. Parker, 32 N. J. 426, 431. The federal government has gone to a 
 great extent in the same direction, levying duties in some cases which 
 in their results are prohibitory; and in the case of the state banks 
 purposely taxing them out of existence. Veazie Bank v. Fenno, 8 
 Wall. 533. This case does not call for any expression of opinion upon 
 legislation of that extreme character, for we have nothing in this law 
 that goes beyond the ordinary legislation when it is enacted for the 
 double purpose of revenue and regulation. 
 
 This state has never shown any disinclination to make things 
 morally and legally wrong contribute to the public revenue when 
 justice and good morals seemed to require it. If it were to act upon 
 the idea of refusing to derive a revenue from such sources, it ought to 
 decline to receive fines for criminal offenses with the same emphasis 
 that it would refuse to collect a tax from an obnoxious business. If 
 the tax is laid by way of discouragement or regulation, it has the 
 same general object in view with the fine; not only as it effects the 
 person taxed and the community, but also in the use to which the 
 money is devoted. Yet the constitution expressly provides for a 
 library fund to be derived from the violations of the public law 
 (Constitution, Art. X1I1., Sec. 12), a provision that may as legiti- 
 mately be said to be a license of crime, as a tax on traffic may be 
 said to be a license of the traffic. 
 
 Taxes upon business are usually* collected in the form of license 
 fees; and this may possibly have lead to the idea that seems to have 
 prevailed in some quarters, that a tax implied a license. But there 
 is no necessary connection whatever between them. 
 
 A business may be licensed and yet not taxed, or it may be taxed 
 and yet not licensed. And so far is the tax from necessarily being a 
 license, that provision is freauently made by law for the taxation of
 
 YOUNG BLOOD V. SEXTON. 533 
 
 a business that is carried on under a license existing independent of 
 the tax. 
 
 Such is the case where cities, under proper legislative authority, tax 
 occupations which are carried on under licenses from the state, Ould 
 v. Richmond, 23 Grat., 464; Napier v. Hodges, 31 Texas, 287; Cutli- 
 bert v. Conly, 32 Geo., 211 ; Wendover v. Lexington, 15 B. Monr., 258 ; 
 see also Home Ins. Co. v. Augusta, 50 Geo., 530. The license confers 
 a privilege, but it is not perceived why a privilege thus conferred 
 should not be taxed as much as any other. The federal laws give us 
 illustration of the taxation of illegal traffic. A case in point was that 
 of the taxation of the liquor traffic in this state previous to the repeal 
 of the prohibitory law; the federal law found a business in existence 
 and it taxed it without undertaking to give it any protection whatever. 
 McGuire v. Com. 3 Wall, 387 ; Pervear v. Com., 5 Wall., 475. What 
 would have prevented' the state from taxing the same traffic at the 
 same time? Is it any more restricted in the selection of subjects of 
 taxation than the general government is? If one may tax and at the 
 same time refuse to protect may not the other do the same ? The only 
 reason suggested for a negative reply to these questions is, that it 
 wa? the state itself, not the United States, that made the business 
 illegal, and it would be inconsistent and absurd to declare it illegal 
 and at the same time tax it. But how the inconsistency would appear 
 in one case rather than the other is not apparent. The illegality was 
 declared by competent authority, and yet the federal government 
 taxed the trade, at the same time refusing, or being unable to protect 
 it. If protection because of the tax was due to the very thing upon 
 which the tax was imposed, there would be an inconsistency in taxing 
 a prohibited trade; but treating taxation, however and wherever it 
 may fall, as the return for the general benefits of government, for 
 the protection of the life, liberty, the social and family relations, as 
 well as to business and property, which is the only legal and proper 
 idea of taxation, there is no inconsistency whatever in making a thing 
 which is not protected one of the measures or standards by which to 
 determine how much the party owning or supporting it ought to pay 
 the government. If one puts the government to special inconvenience 
 and cost by keeping up a prohibited traffic or maintaining a nuisance, 
 the fact is a reason for discriminating in taxation against him; and 
 if the tax i? imposed on the thing which is prohibited, or which con- 
 stitutes the nuisance, the tax law, instead of being inconsistent with 
 the law declaring the illegality, is in entire harmony with its general 
 purpose and may sometimes be even more effectual. Certainly, what- 
 ever discriminations are made in taxation ought to be in the direction
 
 534 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 of making the heaviest burdens fall upon those things which are ob- 
 noxious to the public interests, wherever that is practicable. 
 
 For these reasons we think the objections which have been made 
 to the law have no validity. 
 
 The decree of the superior court dismissing the bill will be affirmed, 
 with costs. 
 
 The other Justices concurred. 
 
 II. WHAT is A PRIVILEGE? 
 PORTLAND BANK V. APTHORP. 
 
 Supreme Judicial Court of Massachusetts, May, 1815. 
 12 Massachusetts, 252. 
 
 PARKER, C. J. This cause was argued altogether upon the question, 
 whether the act of the legislature, passed June, 1812, exacting one 
 per cent, per annum upon the capital of all banks, which should be in 
 operation after the first day of the then ensuing October, could legally 
 and constitutionally be applied to those banks, (of which the Portland 
 bank is one) whose charters existed prior -to the passing of that act. 
 
 The words of the constitution, from which the authority of the 
 legislature to impose taxes and to obtain a revenue is derived, are 
 "to impose and levy proportionate and reasonable assessments, rates 
 and taxes upon all the inhabitants of, and persons resident, and estates 
 lying within the commonwealth; and also to impose and levy reason- 
 able duties and excises, upon any produce, goods, wares and mer- 
 chandise and commodities whatsoever, brought into, produced, manu- 
 factured or being within the same." 
 
 Under the first branch of this power viz. that of imposing and 
 levying rates and taxes, the requisition upon the banks cannot be 
 justified; for those taxes must be proportional upon all the inhabi- 
 tants of, persons resident, and estates lying, within the common- 
 wealth. The exercise of this power requires an estimate or valuation 
 of all the property in the commonwealth; and then an assessment 
 upon each individual, according to his proportion of that property. 
 To select any individual or company, or any specific article of prop- 
 erty, and assess them by themselves, would be a violation of this pro- 
 vision of the constitution. 
 
 But there are other sources of emolument and profit, not strictly
 
 PORTLAND BANK V. APT110RP. 535 
 
 called property, but which are rather to be considered as the means 
 of acquiring property; from which a reasonable revenue may be ex- 
 acted by the legislature, within the fair meaning of the other branches 
 of the power above recited. The exercise of this power is called the 
 imposing or levying of duties and excises; and the subjects upon 
 which they are to be levied are produce, goods, wares, merchandise 
 and commodities, brought into, produced, manufactured, or being 
 within the state. The former provision seems to be intended as a 
 contribution of the individual citizens, in proportion to the property, 
 whether real or personal, which they are respectively worth. The 
 latter is a tax upon the articles, whoever may be the owner, or into 
 whose hands soever they may go; operating as compensation for the 
 privilege of producing, manufacturing or bringing them within the 
 state; and the sum which each individual may pay of this latter 
 species of taxes, may not be in proportion to his property ; but will be 
 only in proportion to the quantity of such particular article so taxed, 
 as may be consumed by him, or used by him in the way of his busi- 
 ness and employment. 
 
 The term excise is of very general signification, meaning tribute, 
 custom, tax, tollage or assessment. It is limited, in our constitution, 
 as to its operation, to produce, goods, wares, merchandise and com- 
 modities. This last word will perhaps embrace everything, which 
 may be a subject of taxation, and has been applied by our legislature, 
 from the earliest practice under the constitution, to the privilege of 
 using particular branches of business or employment, as the business 
 of an auctioneer, of an attorney, of a tavern keeper, of a retailer of 
 spirituous liquors, &c. It must have been under this general term 
 commodity, which signifies convenience, privilege, profit and gains, as 
 well as goods and wares, which are only its vulgar signification, that 
 the legislature assumed the right which has been uniformly and with- 
 out complaint exercised for thirty years, of exacting a sum of money 
 from attorneys, and barristers at law, vendue masters, tavern keepers 
 and retailers. For every man has a natural right to exercise either of 
 these employments free of tribute, as much as a husbandman or 
 mechanick has to use his particular calling. The money required of 
 them is not a proportional tax; nor is it an excise or duty upon 
 produce, goods, wares or merchandise. It is a commodity, conve- 
 nience or privilege, which the legislature has, by cotemporaneous 
 construction of the constitution, assumed a right to sell at a reason- 
 able price ; and by parity of reason it may impose the same conditions 
 upon every other employment or handicraft.
 
 530 TAXATION OF BUSINESS AND PKIVILEGE. 
 
 According to the construction of the constitution, there can be no 
 doubt that the legislature might as well exact a fee or tribute from 
 brokers, factors or commission merchants, for the privilege of trans- 
 acting their business, as from auctioneers, or innholders, or retailers, 
 or attornies. It will undoubtedly be the policy of a wise legislature 
 not to multiply burthens of this sort; but we speak only of their 
 power, presuming that it will never be exercised but for wise or 
 necessary purposes. 
 
 If it should be true that this right exists with respect to individ- 
 uals, then the only remaining question is, whether when a number OL 
 individuals have associated for the purpose of carrying on the business 
 of brokerage, money lending or factorage more conveniently, exten- 
 sively and securely, and for that purpose have obtained a license or 
 charter from the government, they are exempt from a liability, which 
 would attach to them severally as individuals. Did the legislature, 
 when it incorporated the plaintiffs, relinquish the right of laying an 
 excise or duty upon the business which they should transact during 
 the continuance of the charter of incorporation? There is no express 
 waiver or relinquishment, nor is there any strong implication of one. 
 The object of their charter is to enable them in a body, to conduct 
 their business as an individual, to make contracts and to enforce them 
 as such, avoiding the inconveniences of a copartnership. This is all 
 that is asked for by the company, and all that is given by the charter. 
 It is a privilege to manage their business, and not an exemption from 
 duty. 
 
 Suppose that heretofore the legislature should have enacted, that 
 no person should keep a publick house, or retail spirituous liquors, 
 without a license from some authority by them designated; but with- 
 out exacting any tax or duty therefor: could it be contended that 
 afterwards they were precluded from establishing a tax or excise 
 upon the business thus permitted to be exercised ? 
 
 Every man has the implied permission of the government to carry 
 on any lawful business; and there is no difference in the right, be- 
 tween those which require a license and those which do not, except 
 in the prohibition, either express or implied, where a license is re- 
 quired. So that to lay a duty or excise upon branches of business, 
 which exist by license, is no infringement of any privilege conveyed 
 by such license. 
 
 Taxes of this sort must undoubtedly be equal; that is, they must 
 operate upon all persons, who exercise the employment which is so 
 taxed. A tax upon one particular moneied capital would unquestion-
 
 STATE V. SCHLIER. 537 
 
 ably be contrary to the principles of justice, and could not be sup- 
 ported; but a tax upon all banks we think justifiable upon the grounds 
 we have stated. 
 
 Plaintiffs nonsuit. 
 
 STATE V. SCHLJER. 
 
 Supreme Court of Tennessee, October, 1871. 
 3 Heiskell 281. 
 
 NICHOLSON, C. J., delivered the opinion of the Court. 
 
 Defendant was presented at the September Term, 1870, of the 
 Knox County Criminal Court, for having a gallery for taking pho- 
 tographs, ambrotypes, and other likenesses, without paying the privi- 
 lege tax and taking out a license, contrary to the Act of February 
 24th, 1870, ch. 71, sec. 1. The Circuit Judge sustained a demurrer 
 to the indictment, upon the ground that the Act of the Assembly 
 imposing the tax was unconstitutional, and quashed the same. From 
 this judgment the State has appealed. 
 
 The Constitution of 1834 contained the same language, as to the 
 taxation of "privileges," that is found in the Constitution of 1870. 
 It is as follows : "But the Legislature shall have power to tax mer- 
 chants, pedlars, and privileges, in such manner as they may from 
 time to time, direct." This language had been judicially interpreted 
 in several cases, prior to the adoption of the Constitution of 1870. 
 In the- case of the Mayor and Alderman of Columbia v. Guest, the 
 Court said: "We have defined it in several cases, to be the exercise 
 of an occupation, or business, which requires a license from some 
 proper authority, designated by a general law, and not open to all, 
 or any one, without such license": 4 Sneed. 193; 5 Sneed, 258. 
 
 Such was the fixed judicial interpretation of the word "privileges," 
 when the Convention of 1870 adopted exactly the same language, in 
 forming the present Constitution. It was adopted with a full knowl- 
 edge of the meaning which had been attached to it by the courts. 
 This is conclusive as to the present interpretation to be placed on it. 
 
 The Act of February 24th, 1870, c. 24, sec. 1, is as follows : 
 
 "From and after the passage of this Act, artists taking photo- 
 graphs, ambrotypes, or any other likenesses, shall take out a license 
 semi-annually, and pay a privilege tax therefor, as follows: For 
 each and every gallery located in a city of over three thousand inhabi- 
 tants, thirty-five dollars : for each and every gallery located in a
 
 538 TAXATION OF BUSINESS AND PKIVILEGE. 
 
 town of from five hundred to three thousand inhabitants, twenty 
 dollars; for each and every gallery located in a town of less than 
 five hundred, inhabitants, or in the country, five dollars. Said tax 
 to be paid to the Clerk of the County Court of the county in which 
 the gallery * may be located." 
 
 This act constituted the occupation or business of taking photo- 
 graphs, ambrotypes, and other likenesses, a privilege, according to the 
 established definition of that term. Under the power "to tax privi- 
 leges in such manner as the Legislature may from time to time, 
 direct," this Act is constitutional, unless it is in conflict with Art. 11, 
 Sec. 8, of the Constitution. This section is as follows: 
 
 "The Legislature shall have no power to suspend any general law 
 for the benefit of any particular individual, nor to pass any law for 
 the benefit of individuals, inconsistent with the general laws of the 
 land; nor to pass any law granting to any individual or individuals 
 rights, privileges, immunities or exemptions, other than such as 
 may be, by the same law, extended to any member of the community 
 who may be able to bring himself within the provisions of such law." 
 
 By the plain and express language of Art. 2, Sec. 28, the Legisla- 
 ture has the power to exercise its discretion as to the mode of taxing 
 privileges. If there is a conflict between this section and Sec. 8 of 
 Art. 11, it is our duty so to construe them as to make both sections 
 operative. But the first question is, does such conflict exist? It can 
 not be maintained that the first clause of Sec. 8, Art. 11, is violated 
 by the Act of February 24, 1870, c. 71, because this Act does not 
 suspend any general law for the benefit of an individual, nor is it a 
 law for the benefit of individuals, inconsistent with the general laws. 
 
 But it is insisted that the next clause in Sec. 8, Art. 11, is incon- 
 sistent with, and restrictive of Sec. 28, Art. 2, and, therefore, that 
 the Act of February 24, 1870, c. 71 y being in violation of the re- 
 strictive section, is unconstitutional. If the premise is correct, the 
 conclusion is legitimate. Then the enquiry is Does the Act of Feb- 
 ruary 24, 1870, c. 71, grant to any individual or individuals, rights, 
 privileges, immunities, or exemptions, other than such as may be, 
 under that Act, extended to any other member of the community? 
 The Act fixes a maximum tax on photographers of $35; and this is 
 assessed on all who have galleries in cities of 3,000 inhabitants and 
 over. There are no rights, privileges, immunities, or exemptions, 
 granted to such artists, which may not be extended by this law to 
 any other member of the community, who may choose to open a gal- 
 lery for taking photographs, etc., in a city of 3,000 inhabitants or 
 over. It is not easy to understand what kind of rights, privileges,
 
 COLLECTOR V. BEGGS. 539 
 
 immunities, or exemptions, those are which are granted to an artist 
 by taxing him $35 for exercising his art. 
 
 But the Act assesses a tax of $20 on those photographers who exer- 
 cise their art in a town of not less than 500 inhabitants and not 
 more than 3,000 inhabitants. Is this class legislation? This class 
 of artists enjoy no rights, privileges, immunities, or exemptions, 
 which any other artist can not enjoy under the same law. If the 
 artist, in a city of 3,000 inhabitants or over, desires to enjoy the ex- 
 emption or immunity from the tax of $35, under this Act, he can 
 have the right and privilege of living in a town of less than 3,000 
 inhabitants and not more than 500, by moving his gallery there 
 the Act presents no obstacle to his doing so. So, in like manner, 
 under the Act, the classes of artists who are required to pay $35, or 
 $20, can be exempted from these taxes and have the benefit of a $5 
 tax, by taking their galleries into a 500 inhabitant town, or into the 
 country. It can not be class legislation when every member of the 
 community has the right to turn photographer, and exercise his art, 
 either in a city, in a town, or in the country, as he may elect. 
 
 As to the policy of the graduation of the tax, according to the size 
 of the city or town, we have nothing to say. This is a matter left to 
 the discretion of the Legislature by Art. 2, Sec. 28; and we do not 
 think that Art. 11, Sec. 8, contains any restriction on that discretion 
 which has been violated by the Act of February 24, 1870, c. 71. 
 
 We, therefore, reverse the judgment of the Circuit Court, and re- 
 mand the cause to be further proceeded in. 
 
 COLLECTOR V. BEGGS. 
 
 Supreme Court of the United States, December, 1878. 
 17 Wallace, 182. 
 
 Error to the Circuit Court for the Southern District of Ohio; the 
 case being thus: 
 
 Beggs, a distiller, made true and correct reports for the months 
 of September, October and November, 1868, of all spirits by him 
 actually produced. The amount of such spirits, so reported, exceeded 
 80 percentum of the producing capacity of the distillery of plaintiff 
 for the said months respectively. 
 
 He also paid all the taxes assessable against him for such product 
 so reported.
 
 54U TAXATION OF BUSINESS AND PKIVILEGE. 
 
 But by a survey of the distillery, which had been made in pur- 
 suance of the act of July 20th, 1868, and in force 
 
 during the said months of September, October, and November, 1868, 
 the distillery was estimated to be capable of producing from each 
 bushel of grain used three and one-quarter gallons of spirits. 
 
 The amount reported by Beggs as having been produced at his 
 distillery during the said months was less than three and one-quarter 
 gallons for each bushel of grain by him used during that time. 
 
 Hereupon the assessor, maintaining that Beggs was bound to pay 
 taxes upon the amount of three and one-quarter gallons for each 
 bushel of grain used by him during those months, assessed him upon 
 the difference between the amount reported in his returns 
 aforesaid and the said estimated product of three and one-quarter 
 gallons per bushel as fixed and determined in the survey; and made 
 return of this assessment to the collector. 
 
 On demand made by the collector, Beggs paid under protest the 
 sum assessed, and having made application for repayment of it to the 
 Commissioner of Internal Revenue, who refused to repay it, he 
 brought suit in the court below against the collector, one Stevenson, to 
 recover it. 
 
 The court found the facts above stated and held the assessment 
 illegal, and the plaintiff entitled to recover. 
 
 Judgement being entered accordingly, the collector brought the 
 case here. 
 
 Mr. Justice STRONG delivered the opinion of the court. 
 The twentieth section of the act of Congress in question prescribed 
 a mode for the ascertainment of the quantity of spirits for which a 
 distiller was required to account in his monthly returns to the asses- 
 sor. By a previous section the distiller was required to make a return, 
 but the twentieth section made it the duty of the assessor, on the re- 
 ceipt of the distiller's first return in each month, to inquire and deter- 
 mine whether he had accounted, in his return for the preceding month, 
 for all the spirits produced by him, and, to determine the quantity 
 of spirits thus to be accounted for, it required that the whole quantity 
 of materials used for the production of spirits should be ascertained. 
 It gave also a rule by which the quantity of materials used for the 
 production of spirits should be ascertained and settled by the assessor, 
 and it then enacted that in case the return of the distiller had been 
 less than the quantity thus ascertained, he should be liable to be 
 assessed for such deficiency, at the rate of fifty cents for every proof 
 gallon, together with the special tax of $4 for every cask of forty 
 proof gallons, which the collector was required to collect. It also en-
 
 COLLECTOR V. BEGGS. 541 
 
 acted that in no case should the quantity of spirits returned by the 
 distiller, together with the quantity so assessed, be less than 80 per 
 centum of the producing capacity of the distillery, as estimated under 
 the provisions of the act. 
 
 The next preceding section (the 19th) made it the duty of ever} 7 
 distiller, on the 1st, llth, and 21st days of each month, or within 
 five days thereafter, to render to the assistant assessor an account in 
 duplicate, taken from the books he was required to keep, stating not 
 only the number of wine gallons and of proof gallons of spirits pro- 
 duced and placed in warehouse, but also the quantity and kind of 
 materials used for the production of spirits each day. 
 
 The purpose of these requisitions, as well as of many others made 
 by the statute, was obviously to guard against fraudulent returns, and 
 to secure to the government a tax on all spirits produced, and upon all 
 which might have been produced from the quantity of materials used. 
 Hence the distiller was required to return, not merely the amount of 
 his product, but the kind and quantity of materials used by him, and 
 the assessor was directed to test the accuracy of that return, and to esti- 
 mate, from the quantity of materials ascertained by him to have been 
 u=ed. the number of gallons of spirits which should have been ac- 
 counted for. The quantity of materials used, as ascertained by the 
 assessor, was made a measure of production, and upon all spirits ascer- 
 tained by that measure to have been produced, either actually or 
 potentially, the distiller was expressly required, by the twentieth sec- 
 tion, to pay the tax, without any reference to his return, or to what 
 had actually been produced. In no case could he escape from liability 
 to pay a tax on at least 80 per centum of what his distillery was esti- 
 mated to be capable of producing, but if he produced more, or if the 
 quantity^ of materials which he had used, as ascertained and deter- 
 mined by the assessor, showed that his production had been or should 
 have been greater, he was subjected to the required tax on the quantity 
 of spirits which that ascertained quantity of materials was capable of 
 producing, and not merely upon 80 per centum of that quantity. 
 This was the unequivocal language of 'the act. Thus the quantity of 
 materials used, as ascertained ly the assessor, and not the actual pro- 
 duct of spirits, was made the measure of liability to taxation and of its 
 extent. 
 
 This construction of the 20th section is in entire harmony with all 
 the other parts of the act. The 10th section directed a survey of every 
 distillery registered, or intended to be registered, for the production 
 of spirits, in order to estimate and determine its true producing ca- 
 pacity. This survey was required to be made bj the assessor of the
 
 542 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 collection district, with the aid of some competent and skilful person, 
 to be designated by the Commissioner of Internal Revenue. The mode 
 in which the producing capacity of the distillery was to be ascertained, 
 as prescribed by the regulations of the commissioner, was by measur- 
 ing each mash, or fermenting tub by calculating how many bushels 
 of grain, when mashed (if grain was used), the fermenters would 
 hold, by considering the period of fermentation, and deducing there- 
 from the number of bushels which could be fermented in twenty-four 
 hours. This ascertained, the assessor and his assistant were directed 
 to estimate the quantity of spirits that could be produced in the dis- 
 tillery from a bushel of grain, and multiplying that by the number of 
 bushels that could be fermented therein in twenty-four hours, the 
 producing capacity of the distillery was to be ascertained and fixed as 
 a standard of taxation, or rather to determine the minimum of taxa- 
 tion. At all events the distiller was made taxable for a production of 
 spirits not less than 80 per cent, of the producing capacity of his 
 distillery, as determined by the survey, whether that quantity was 
 actually produced by him or not; or whether he used a bushel of 
 grain or not. Eighty per cent, of the estimated (not the actual) 
 capacity of the distillery, was the smallest amount for which he was 
 taxable. But if he actually produced more, or if the quantity of grain 
 or other materials used for distillation, as ascertained by the asses- 
 sor, showed a larger production, he was made taxable to the full extent 
 of that production thus shown. No other interpretation can be given 
 to the 20th section. 
 
 Now, applying this to the facts of this case, as found by the Circuit 
 Court, it becomes very evident that the judgment should have been 
 given for the defendant below. 
 
 It is true the actual production of spirits for the three months, 
 September, October, and November, 1868, as returned by the plaintiff 
 below, and correctly returned, was more than 80 per cent, of the 
 producing capacity of his distillery for those three months. Whether 
 it was more than 80 per cent, of the producing capacity, as determined 
 by the survey, provided for in the tenth section of the act, is not found, 
 nor is it material. It is found that by reason of the survey made in 
 pursuance of that section, the distillery was estimated to be capable of 
 producing from each bushel of grain used, three and one-quarter gal- 
 lons of spirits ; that the quantities reported by the plaintiff, as having 
 been produced during those three months, were less than three and 
 one-quarter gallons for each bushel of grain used by him during that 
 time, and that th.e additional assessment was made, of which he com- 
 plains, was for the difference between the quantity reported in his re-
 
 BURLINGTON V. PUTNAM INS. CO. 543 
 
 turns and the estimated product of three and one-quarter gallons for 
 each bushel of grain used, the possible production determined by the 
 survey. Such being the facts, as found, the plaintiff was expressly 
 declared by the 20th section to be assessable for the difference between 
 his return and the estimated possible product, and it was made the 
 duty of the collector to collect it. The survey and estimate of pro- 
 ducing capacity made under the 10th section were conclusive, while 
 they remained, though subject to revision, under the direction of the 
 Commissioner of Internal Eevenue. And the extent of liability to 
 taxation was, under the act of Congress, directed to be measured, not 
 by the actual product of spirits but by what should have been the 
 product of the materials used, according to the estimate made under 
 the 10th section. 
 
 It follows that the assessment made was legal, and that the plaintiff 
 is not entitled to recover. The Circuit Court, therefore, erred in giv- 
 ing judgment for the plaintiff. 
 
 JUDGMENT REVERSED, and the record remitted with instructions 
 to enter JUDGMENT FOR THE DEFENDANT. 
 
 III. LOCAL TAXATION. 
 CITY OF BURLINGTON V. PUTNAM INSURANCE CO. 
 
 Supreme Court of Iowa. December, 1870. 
 31 Iowa, 102. 
 
 This action is brought to recover certain license fees and assess- 
 ments levied under the ordinances of the city of Burlington. A de- 
 murrer to the petition was sustained. Plaintiff appeals. 
 
 BECK, J. By an amendment to the charter of the city of Burling- 
 ton the city council is empowered "to levy and collect taxes on all 
 real and personal property in said city, not exempt by the general law 
 from taxation;" and also "to grant or refuse licenses" to insurance 
 companies, other than mutual companies, and "to require and receive 
 for such licenses such sums of money as they may deem expedient and 
 just." Acts, 4th Gen. Assem., ch. -49. By an ordinance of the city, 
 it is provided that "there shall be levied and collected on every license 
 granted for any business or object herein specified, as follows: that 
 sum which the city council shall, by resolution of record, from time 
 to time, declare." The business of insurance is specified in the ordi-
 
 544 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 nance as subject to license. By a subsequent resolution of the city 
 council it is declared that ''insurance companies or agencies shall pay 
 into the city treasury, quarterly, under oath, one per cent, on their 
 premiums, and, in addition thereto, the following sums for licenses. 
 Those companies or agencies whose premiums amount to less than 
 $500 shall pay $5; thofe whose premiums amount to $500 and less 
 than $1,000,$10 ; those whose premiums amount to $1,000 and less than 
 $1,500, $15; those whose premiums amount to $1,500 and over, $15." 
 Under this ordinance and resolution, defendant failing to pay the as- 
 sessments therein authorized upon the receipt of premiums to the 
 amount of $570. this action is brought to recover the same. 
 
 Defendant demurred to the petition on the grounds that the license 
 and tax which the plaintiff seeks to recover is not authorized by the 
 laws of the State, and the ordinance and resolution set out in the 
 petition are not sufficient to authorize the license and tax. There is 
 another objection set out in the demurrer, but as it is not presented 
 in argument in this court by counsel it need not be noticed in this 
 opinion. 
 
 It is necessary to consider the assessment of one per centum upon 
 the amount of premiums received, and the amount imposed for a li- 
 cense, separately. 
 
 I. It cannot be fairly claimed that the one per centum is a charge 
 for license. The resolution authorizing the collecting of that sum ex- 
 pressly distinguishes the two. It in terms requires the payment of the 
 one per centum, and then declares that there shall be collected "in addi- 
 tion thereto the following sums for licenses," specifying the amounts 
 to be paid. The one per centum is clearly not required to be paid for 
 or on account of the license. It is, then, an assessment in the nature 
 of a tax. Is the city authorized to levy it? It may levy and collect 
 taxes upon the real and personal property in the city, and this is the 
 extent of its taxing power. It is a well settled rule that taxes can be 
 levied and collected by municipal corporations only, as the power is 
 conferred upon them by the legislature; from that source they derive 
 authority to levy taxes, and it must be exercised in the manner pre- 
 scribed in their charters. The power conferred in this instance is to 
 levy and collect taxes upon real and personal property. It is not pre- 
 tended that the one per centum is levied on account of real estate 
 owned by the defendant, but it is an assessment upon an income from 
 premiums. This income cannot be considered as personal property, 
 and is. therefore, not liable to taxation as such. This point was ruled 
 in The City of Dubuque v. The Northwestern Mutual Life Ins. Co., 
 29 la. 9.
 
 BUKLINGTON V. PUTNAM INS. CO. 545 
 
 The one per centum assessment is, in our opinion, unauthorized by 
 the charter of the city. 
 
 II. The charge imposed for licenses will now be considered. The 
 city is authorized to grant licenses and charge therefor such sums as it 
 may deem expedient and just. It is argued by defendant's counsel 
 that the charter, or rather the amendment thereto, so far as it be- 
 stows the power of imposing licenses upon insurance companies, is 
 repealed by section 38 of chapter 138, acts twelfth general assembly, 
 regulating the taxation to be imposed upon them; but the amended 
 charter of the city, giving the licensing power, is, we conclude, not 
 repealed by the act named, for the following reasons : The two acts 
 do not relate to the same subject. The provision of the charter relates 
 to the licensing of the insurance companies, and grants the power as 
 a part of the police authority of the city. The section of the act cited, 
 as repealing this provision, relates to the taxation of insurance com- 
 panies. These acts, therefore, cannot be in conflict, and by no rule 
 of construction can the last act be held to repeal, by implication, the 
 authority conferred in the charter to license insurance companies. 
 But it is said that the license issued by the city is for the purpose of 
 revenue and is, therefore, a tax. We will not determine the question 
 whether, if it, in fact, amounts to a tax under the charter, the author- 
 ity to levy it is taken away by the act providing for the taxation of 
 insurance companies above referred to. We will dispose of the point 
 raised upon a different view, and will not touch the question of re- 
 peal thus raised. 
 
 We may concede that a power to license will not authorize, under 
 the guise of licenses, taxation for revenue ; that licenses are a part of 
 the police regulations of a city, and should be charged for as such, 
 and only to such extent as may reasonably compensate the city for 
 issuing and enforcing the license, and for the care exercised by the 
 city, under its police authority, over the particular person licensed. 
 But who shall determine what sum is within these bounds? The 
 charter of the city leaves this question with the city council, who are 
 authorized to charge such sums "as they may deem expedient and 
 just.*' The legislature evidently intended they should determine the 
 proper sura to be charged for licenses. We must not be understood as 
 holding that a court cannot, in any case, interfere if the sum should 
 be clearly unjust or oppressive, or levied for the purpose of raising 
 revenue. But in the case before us no such showing is made. We 
 cannot say that the charges fixed by the council are not such as are 
 necessary and proper compensation for the expense and enforcement 
 of the license and the protection of defendant undef police regulations 
 35
 
 546 TAXATION OF BUSINESS AND PEIVILEGE. 
 
 connected with or growing out of the license. The State, for the use, 
 etc., v. Herod, 29 Iowa, 123. 
 
 It is urged that the charge for licenses are not the same upon all 
 companies, but is varied to correspond with the income of the par- 
 ties taking licenses. This is not a good objection. The right and 
 power vested in the city to fix the charge would authorize them to 
 vary it with different parties, as they may deem prudent and just. 
 The difference in the charges appears to me to be based upon just 
 grounds. The city is authorized to license vehicles. It would be just 
 that those of different capacities should be charged different sums. 
 The same reasons that would justify such course of dealings with 
 vehicles supports the difference in charges for licenses to insurance 
 companies. 
 
 The demurrer, so far as it was directed at the right of plaintiff to 
 recover the one per centum upon the premiums of defendant, was 
 rightly sustained, but the decision thereon against the power of the 
 city to license and collect charges therefor, as provided in the ordi- 
 nance and resolution of the city council, is erroneous. The judgment 
 of the district court is therefore reversed and the cause will be re- 
 manded for further proceedings not inconsistent with this opinion. 
 
 Reversed. 
 
 MAYOR ETC. OF NEW YORK V. SECOND AVE. R. R. CO. 
 
 Court of Appeals of New York, March, 1865. 
 82 New York, 261. 
 
 This action was brought to recover the penalty of fifty dollars, im- 
 posed by an ordinance passed by the plaintiffs December 31, 1858, 
 upon the proprietor of every passenger railroad car running in the 
 city of New York below 125th street, who should not procure a license 
 from the mayor for each car, and pay annually therefor the fee' of 
 fifty dollars. 
 
 All the facts alleged in the complaint are admitted by the answer ; 
 but the defendants set up as a defense an agreement made between the 
 plaintiffs and the defendants' assignors, dated December 15, 1852, 
 whereby permission was granted to such assignors to construct and 
 operate a railroad in Second avenue, and which, they contend, estops 
 the plaintiffs from requiring any license. 
 
 To this answer there was a demurrer, which was overruled at Spe-
 
 MAYOB V. SECOND AVE. B. R. CO. 547 
 
 cial Term, and the judgment affirmed at General Term, INGRAHAM, 
 J., dissenting. 
 
 From that judgment the plaintiffs appeal to this court. 
 
 The only question presented is that of the validity of the ordinance 
 of December 31, 1858. 
 
 BROWN, J. 
 
 The plaintiffs must show, however, that the subject of the ordinance 
 which they are seeking to enforce, is one over which they have author- 
 ity to legislate, and that it is a regulation of police and internal gov- 
 ernment, and not the mere imposition of -a duty or sum of money for 
 the purposes of revenue. The agreement betwen the plaintiffs and 
 Pearsall and his associates, of the 15th December, 1852, has all 
 the properties of a contract. 
 
 This right of regulation and control the plaintiff specially reserved 
 in the instrument creating the grant, in addition to their general 
 powers to make ordinances and regulations of police for the govern- 
 ment of the city. This brings me to consider the nature and character 
 of the ordinance for the breach of which this action is brought. 
 
 Section 106 declares that "each and every passenger railroad car 
 running in the city of New York below 125th street, shall pay into 
 the city treasury the sum of fifty dollars annually for a license, a cer- 
 tificate of such payment to be procured from the mayor, except the 
 small one horse passenger cars, which shall each pay the sum of 
 twenty-five dollars annually for such license as aforesaid/' Section 2 
 declares that "each certificate of payment of license shall be affixed to 
 some conspicuous place in the car, that it may be inspected by the 
 proper officer." And section 3 prescribes the penalty for running a 
 car without the proper certificate. That is all. There is nothing for 
 the railroad corporations to do but to pay to the mayor the sum of fifty 
 dollars annually for each car, and receive in return a license or certifi- 
 cate that the money has been paid. The ordinance imposes no duties 
 to be observed by the company or its servants, but the single act of 
 paying the money. It prescribes no regulations in regard to the size, 
 dimensions, comfort and cleanliness of the cars, the speed at which 
 the same shall be run, the manner of receiving and discharging pas- 
 sengers, their numbers and names, and the stations at which they 
 shall stop. Regulations of police are regulations of internal or domestic 
 government, forbidding some things and enjoining the performance 
 of others for the security and protection, and to promote the happi-
 
 548 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 ness of the governed. The only act enjoined by the ordinance in 
 question is the payment of the fifty dollars, and the only act which it 
 forbids and prohibits is the running of the cars without the payment 
 of the money. If the legislature should by law require every head of 
 a family throughout the State to pay to the collector the sum of 
 twenty dollars, and take his receipt therefor, it would be a fiscal meas- 
 ure, an expedient to replenish the treasury, not a regulation of police 
 prescribing a rule of action and conduct. So with this ordinance, call 
 what it requires by the name of license or certificate of payment or 
 anything else, its primary, and indeed, only purpose is to take from 
 the company, under coercion of the penalty which it imposes, the sum 
 of fifty dollars annually for -each car run upon the road for the benefit 
 of the city. The certificate which the company is to receive upon pay- 
 ment being made, is called a license in the ordinance. A license to 
 do what the ordinance does not say and indeed it could not, with 
 truth, say a license or permission to employ the car in the transpor- 
 tation of passengers upon the road, for the absolute right to do that 
 which had been not only acquired, but positively enjoined upon the 
 company by the stipulations of the grant of the 15th of December, 
 1852. It is vain, therefore, to speak of it or treat it as a license, or a 
 regulation of police. It is the imposition of an annual tax upon the 
 company in derogation of its rights of property, and on that account 
 is unlawful and void. 
 
 The judgment of the supreme court should be affirmed, with costs. 
 Judgment affirmed. 
 
 The reverse is true, i. e., the power to tax does not give power to license. 
 Burlington v. Baumgardner, 42 Iowa 673. Further, power to regulate does 
 not give power to license, ibid, or to charge a fee. Dunham v. Rochester, 
 5 Cowen 462; Kip v. Patterson, 26 N. J. L. 298. So also the licensing of 
 an occupation does not exempt it from the tax power. Ould v. Richmond, 
 23 Grattan 464, infra. The distinction between the taxing power and the 
 police power, where it is combined with the power to license, does not how- 
 ever preclude the imposition of a fee where only the police power of licensing 
 is possessed. Thus in all cases a fee sufficient to pay the expense of issuing 
 the license may be demanded. Van Hook v. City of Selma, 70 Ala. 361. 
 But in case of trades whose influence like that of the liquor trade is believed 
 to be harmful, a fee large enough in amount to discourage the trade may 
 be demanded merely where the licensing power is possessed. Tenney v. 
 Lenz, 16 Wis. 566. See also City of Chester v. W. U. Tel. Co., 154 Pa. St. 
 464; W. U. Tel. Co. v. Borough of New Hope, 187 U. S. 419, supra.
 
 CITY OF NEWTON V. ATCH1NSO.N. 549 
 
 CITY OF NEWTON V. ATCHINSON. 
 
 Supreme Court of Kansas. July, 188S. 
 31 Kansas, 151. 
 
 Action by T. B. Atchinson and another, (partners as Atchinson & 
 Knowlton,) and others, against the City of Newton and three others, 
 to perpetually enjoin said city and its officers from enforcing against 
 plaintiffs, as hardware and implement merchants therein, a certain 
 ordinance levying a business license tax against them. March 6, 
 1883, Hon. L. HOUK, judge of the district court, at chambers, over- 
 ruled defendants' motion to dissolve a temporary order of injunction 
 theretofore granted in favor of plaintiffs. This ruling the defend- 
 ants bring to this court. The facts are sufficiently stated in the opin- 
 ion. 
 
 The opinion of the court was delivered by 
 
 BREWER, J. : The question in this case is as to the validity of a 
 certain ordinance of the City of Newton, providing for the levy and 
 collection of a license tax. 
 
 
 
 . . . . The plaintiffs in the present case, defendants in error 
 
 here, were all hardware merchants They challenge 
 
 the validity of this ordinance so far as it imposes upon their busi- 
 ness, that of hardware merchants, a license tax The 
 
 first section of the ordinance contains all the facts necessary to a 
 full understanding of the questions involved. That section reads: 
 
 "That a license tax per annum is hereby levied upon all merchant* 
 or persons engaged in merchandising, as follows, to wit: Five dol- 
 lars upon all persons whose average amount of stock does not ex- 
 ceed one thousand, and two dollars and fifty cents in addition thereto 
 for every one thousand dollars or fractional part thereof in excess of 
 the first thousand dollars." 
 
 Before noticing some specific objections which are made to this 
 particular tax, we think it proper to state certain general proposi- 
 tions which underlie this matter of a license tax. 
 
 First. In the absence of any inhibition, express or implied, in the 
 constitution, the legislature has power, either directly to levy and 
 collect license taxes on any business or occupation, or to delegate like 
 authority to a municipal corporation. This seems to be the concur- 
 rent voiae of all the authorities. 
 
 Second. There is no inhibition, express or implied, in our consti-
 
 550 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 tution, on the power of the legislature to levy and collect license 
 taxes, or to delegate like power to municipal corporations. It is not 
 pretended that there is any express inhibition. It has been contended 
 that 1, art. 11, creates an implied inhibition, and this because ii 
 reads that "the legislature shall provide for a uniform and equal 
 rate of assessment and taxation." But that section obviously refers 
 to property, and not to, license taxes 
 
 In Burroughs on Taxation, 54, referring to the various provis- 
 ions in the different constitutions as to uniformity and equality, the 
 author adds: 
 
 "These provisions, as a general rule, are held to apply to property 
 alone, and not to include taxation on privileges or occupations." 
 
 Sedgwick, in commenting upon this subject, says: 
 
 "In construing these provisions, it has been held, in many of the 
 states, that the words 'equal' and 'uniform' apply only to a direct 
 tax on property, and that the clause in regard to uniformity of taxa- 
 tion does not limit the power of the legislature as to the object of 
 taxation, but was only intended to prevent an arbitrary taxation, ac- 
 cording to the kind or quality, without regard to value. Specific 
 taxes have therefore been sustained as a valid exercise of the legis- 
 lative power." ( See Sedg. on Stat. and Cbnst. Law, 2d ed., 504- 
 507.) 
 
 ' h 
 
 Passing now to some specific questions raised as to this particular 
 tax, we remark 
 
 Third. That 3 of chapter 40, Laws of 1881, gives express au- 
 thority to levy and collect license taxes on certain occupations. 
 
 The language of the section seems plain. It reads, 
 
 "The city council shall have exclusive authority to levy and collect 
 a license tax on auctioneers," etc. We cannot see how language can 
 be plainer. Every part of the sentence points toward this power. 
 The verbs used are "levy and collect," words generally used in ref- 
 erence to taxes, and not very apt in respect to mere licenses. The 
 city is authorized to levy and collect a license tax. The principal 
 word here is "tax," and the term "license" simply qualifies and de- 
 scribes it. Where nothing but license is contemplated, the language 
 ordinarily is direct, and grants power "to license," or "to license and 
 regulate," or "to adopt rules and regulations for licensing." 
 
 Fourth. The validity of the tax is challenged on the ground that 
 in the charter there has been no compliance with 5, art. 12 of the 
 state constitution, which reads:
 
 CITY OF NEWTON Y. ATCHINSON. 551 
 
 "Provision shall be made by general law for the organization of 
 cities, towns and villages; and their power of taxation, assessment, 
 borrowing money, contracting debts and loaning their credit, shall be 
 so restricted as to prevent the abuse of such power." 
 
 It is said that the charter contains no restrictions with regard to 
 these license taxes. If it were true that there was absolutely no re- 
 striction, it might well be held that the power was not granted; and 
 yet there are very respectable authorities, and indeed the weight of 
 authority seems to be to the effect, that it is purely a matter of legis- 
 lative discretion. In 1 Dillon on Municipal Corporations, 3d. ed. 
 50, the author, after quoting from the constitution of New York 
 a section similar to the one in our constitution, observes: 
 
 "This obviously enjoins upon the legislature the duty of providing 
 suitable and proper restrictions upon the enumerated powers; but in 
 what these restrictions shall consist, and how they shall be imposed, 
 are subjects left to the discretion or sense of duty of the legislative 
 department, with the exercise of which the courts cannot interfere.'* 
 
 In Hill v. Higdon, 5 Ohio St. 248, the court, by Eanney J., says 
 that a failure of the legislature to observe these constitutional re- 
 quirements "may be of a very serious import, but lay no foundation 
 for judicial correction." In Cooley on Taxation, page 252, we find 
 the law thus stated: 
 
 "By some state constitutions it is expressly made the duty of the 
 legislature, in conferring local power of taxation, to impose restric- 
 tions on the power in order to prevent its abuse. Such a provision is 
 addressed to the discretion of the legislature, which will impose such 
 and such only as are deemed advisable." 
 
 See also the authorities cited in the note, as well as those in the 
 note to the quotation from Dillon, supra. 
 
 But this constitutional provision has been before this court, and 
 has here received a judicial construction. (Hines v. City of Leaven- 
 worth, 3 Kas. 203.) In that case, while the necessity of some restric- 
 tion was insisted upon, it was held that full discretion as to what 
 restrictions should be imposed was left to the legislature; and that 
 the court would not interfere even though of the opinion that the 
 restrictions were not sufficient to prevent abuses. In that case two 
 or three restrictions of a very trivial nature were adjudged sufficient. 
 Here it is provided that no tax shall be levied except by ordinance, 
 and such ordinance must receive a majority of all the votes of the 
 councilmen elected, and that the vote must be taken by yeas and 
 nays, and entered upon the record of the proceedings of the council. 
 It is true there is no restriction upon the amount of tax which may
 
 552 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 be levied; no more was there in the case in 3 Kas., supra. Instead 
 of being a direct, in that case as well as this, there is only, 
 so to speak, an indirect restriction, and yet if the legislature deems 
 this indirect restriction sufficient, it is not for the courts to ignore 
 it and say it amounts to nothing. Therefore this ob- 
 jection to the validity of this tax also fails. 
 
 Fifth. It is finally objected that this tax is in effect a property 
 tax, and therefore void. This is based upon the language of the sec- 
 tion heretofore quoted. The tax upon merchants is graduated by the 
 average amount of stock. If that average does not exceed $1,000, the 
 tax is $5 per annum, and for each $1,000 or fractional part thereof 
 in excess, $2.50. Therefore, being graduated by the amount of prop- 
 erty, it is in substance and effect only a property tax. This is the 
 difficult question in the case. The argument is, that the law regards 
 substance rather than form; that you may not do indirectly what 
 you cannot do directly; that it would be clearly invalid to levy a tax 
 on a merchant's property of five mills that being the levy on all 
 other taxable property and then impose a second tax of five mills 
 on his property alone. If this cannot be done by a direct tax on his 
 property, it cannot be done indirectly by calling the second tax one 
 on business. The language of the ordinance is similar to that in the 
 general tax law, and the tax is in each case graduated by the aver- 
 age amount of stock. While the right to graduate a business tax may 
 be conceded, yet the graduation must be by some standard which is a 
 fair criterion of the amount of business. The amount of stock is 
 not such a criterion, for though one man's stock may be large, his 
 sales may be few and his business limited ; while another whose stock 
 averages much less may do a much larger business, selling and re- 
 placing with greater rapidity. The amount of stock may be a test of 
 property, but not of business. 
 
 In support of these views, counsel cite the following authorities : 
 Livingston v. City of Albany, 41 Ga. 21; Commonwealth v. Stodder, 
 2 Gush. 572; Durham v. Trustees, 5 Cow. 466; Mayor v. Rid. Co., 
 32 N. Y. 373; State v. Bid. Co., 40 Md. 22; State v. Bid. Co., 4 S. 
 C. 376; Orleans v. Pierre Nongues, 11 La. An. 740; Burroughs on 
 Taxation, 69 and 70; Bank-Tax Case, 2 Wall. 200; Cooley on Taxa- 
 tion, page 164. 
 
 But notwithstanding the plausibility of this argument, we are 
 constrained to think it not sound. The tax provided by this ordi- 
 nance is in terms a tax upon business. The results of a tax do not 
 determine its character. Every license tax compels the party to pay 
 more taxes than his taxable property justifies. A merchant and a
 
 CITY OF NEWTON V. ATCHINSON. 553 
 
 farmer have each $5,000. The property tax on each is the same. 
 Any license tax imposed on the former increases his total taxes above 
 the amount properly chargeable on $5,000. Yet this does not make 
 the license tax a tax on property. Indirectly one's property may be 
 affected. It will be diminished by so much as is necessary to pay 
 the license tax. The argument of counsel carried to its final results 
 makes against the validity of all license taxes. 
 
 Again, graduation in the matter of license taxes is not ouly sup- 
 ported by the authorities, but is also eminently just. A license tax 
 which is the same on a merchant doing an annual business of $5,000 
 as upon one doing a like business of $1,000,000, strikes anyone as 
 unjust, and as distributing the public burdens very unfairly. It may 
 be said that the property tax, being proportioned to the amount of 
 property, equalizes burdens, and that both, engaged in the same busi- 
 ness, should pay the same business tax. But the principles that jus- 
 tify the graduation in property, apply in business taxes. The larger 
 the business, the greater the protection and benefit of organized so- 
 ciety and government. And if graduation is permissible, then any 
 standard or rule of graduation may be adopted which is reasonably 
 fair and just. And the fact that the same standard is adopted which 
 is used in other taxation does not change the character of the tax. 
 Because a license tax is proportioned in the same manner as a prop- 
 erty tax, it does not therefore cease to be a license tax. And that is 
 really the point of counsel's argument. This license tax is graduated 
 as property taxes are graduated. Therefore it is a property tax. The 
 reverse argument would be just as logical, and demonstrate as forci- 
 bly, that all property taxes are simply license taxes. The rule of 
 graduation adopted in this case may not be absolutely perfect. The 
 amount of stock does not necessarily determine the amount of busi- 
 ness. And yet it is ordinarily a fair criterion. And some objection 
 can be made to any standard suggested. If the amount of sales is 
 named it can be objected that in some cases profits are large and in 
 others small, so that one with the larger income may pay the smaller 
 business tax. If profits are named, then, as out of a single transac- 
 tion or two large profits may sometimes be made, one who really does 
 very little business may be charged with a large business tax. Be- 
 sides, profits are so largely a matter of the merchant's personal knowl- 
 edge and of his alone, that it would be difficult to practically en- 
 force such a standard with any degree of accuracy. It is hard 
 enough to enforce one based upon the average amount of stock, and 
 yet that is a visible fact. No standard will in all cases be found ab- 
 solutely perfect and securing equal and exact justice. And while we
 
 554 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 think the amount of sales would be a fairer standard, yet the amount 
 of stock cannot be pronounced entirely arbitrary and with no reason- 
 able relation to the fact to be determined. It cannot be adjudged 
 that a license tax graduated thereby is by reason thereof invalid. 
 
 From Cooley on Taxation, 164, counsel quote the following: 
 
 'There is a sense, however, in which duplicate taxation may be 
 understood and which, we think, is the proper sense which would 
 render it wholly inadmissible under any constitution requiring equal- 
 ity and uniformity in taxation. By duplicate taxation, in this sense, 
 is understood the requirement that any person or any subject of tax- 
 ation shall directly contribute twice to the same burden, while other 
 subjects of taxation belonging to the same class are required to con- 
 tribute but once. We do not see, for instance, how a tax on a mer- 
 chant's stock, by value, could be supported, when, by the same au- 
 fhority and for the same purpose, the same stock was taxed by value 
 as a part of his property. This is a very different thing from one 
 tax upon property and another upon the business, though the latter 
 may indirectly reach the property ; here is no circumlocution, no ques- 
 tion of the ultimate effects, but a tax levied twice on the same subject, 
 only under a different name. 
 
 We do not understand this as meaning what they claim, but as sim- 
 ply holding that there cannot be two direct taxes upon the same prop- 
 erty, it being listed and described under different names. We think 
 that the latter part of the quotation makes the author's meaning 
 clear. See also the note to page 139, in which he says : 
 
 "A law which should make no discrimination in the taxation of 
 business, we should say in some cases would produce the grossest in- 
 justice and inequality, and it may be seriously questioned whether 
 the requirement of uniformity in the taxation of business could be 
 understood as forbidding the classification of those engaged in the 
 business; for example, underwriters, by the business done or pre- 
 miums received ; merchants, by the capital invested or the sales made, 
 etc., and the apportionment of taxes accordingly." 
 
 See also, on pages 384 and 385, he says: 
 
 "The methods in which business should be taxed are also in the 
 legislative discretion. The taxes which are most customary are : ( 1 ) 
 On the privilege of carrying on the business; (2) on the amount of 
 business done; (3) on the gross profits of the business; (4) on the 
 net profits, or profits divided. But the tax may be measured by 
 other standards prescribed for the purpose, as well as by them/' 
 
 In Simmons v. The State, 12 Mo. 268, the court held that a license
 
 OULD & CARRIXGTON V. RICHMOND. 555 
 
 tax on lawyers might be graduated. (See also City of Burlington v. 
 Insurance Co., 31 Iowa 102; Mares v. Erwin, 8 Hump. 290; Osborne 
 v. Mayor, &c., 44 Ala. 498; Ex. Co. v. Mayor, &c., 49 Ala. 404; Quid 
 v. City of Richmond, 23 Gratt. 464; Commonwealth v. Moore, 25 
 Gratt. 951; Sacramento v. Crocker, 16 Cal. 119.) This last was * 
 case where the license was graduated by the amount of monthly sales, 
 and the tax was sustained. 
 
 We have prolonged this opinion as far as is necessary. Our con- 
 clusion is that the tax cannot be held unconstitutional and invalid. 
 Therefore the courts may not interfere to restrain its collection. If 
 unwise or impolitic, the people can soon put a stop to it and correct 
 any mistake which their officers may make in this respect. 
 
 The judgment of the district court will be reversed, and the case 
 remanded with instructions to sustain the motion to dissolve and 
 vacate the order of injunction. 
 
 HOETON, C. J., concurring. 
 
 OULD & CARRINGTOX V. CITY OF RICHMOND. 
 
 Supreme Court of Appeals of Virginia. June, 187S. 
 23 Grattan 464- 
 
 This was an action of assumpsit in the Circuit Court of the City 
 of Richmond, instituted in November, 1871, by Ould & Carrington, 
 lawyers, against the City of Richmond. The object of the suit was 
 to establish the constitutionality of the ordinance of the city council, 
 imposing a tax on lawyers. Issue was made up on the plea of "non 
 assumpsit," and the whole matter of law and fact was submitted to 
 the decision of the court. 
 
 By the ordinance imposing taxes, persons following various em- 
 ployments in the city were classified, and a specified tax was imposed 
 on each class. Among these were lawyers who were divided into six 
 
 classes. 
 
 In 1871 the committee of finance placed the plaintiffs, as lawyers, in 
 the first class, and classified all lawyers practising in the city in the 
 respective classes mentioned in s. 5 of the ordinance; that being the 
 section in reference to lawyers. In doing so the committee had no
 
 556 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 assessment of the plaintiffs' income from their profession before 
 them; nor did the committee ascertain, or attempt to ascertain, their 
 incomes in any way; but formed its own estimate, without evidence, 
 of the reputation and standing of the lawyers practising law in the 
 city of Richmond, including the plaintiffs, and their supposed capac- 
 ity to make profits in that way, relatively with each other, and clas- 
 sified them accordingly. The committee made no report to the coun- 
 cil of their action in the premises; nor did the council ever revise 
 or consider it in any way; but an opportunity was offered to all the 
 lawyers to show, each for himself, that they had been taxed too high 
 in the manner provided in the eleventh section of the ordinance; and 
 some of them availed themselves of that opportunity; and among 
 them the plaintiffs, whose tax was reduced from one hundred and 
 fifty to ode hundred dollars; but in doing so the committee acted 
 without evidence of the relative incomes of the lawyers embraced in 
 the classification. The plaintiffs having paid the tax under protest, 
 after the officer had levied upon their property, brought this action to 
 recover it back. 
 
 Upon the hearing of the case there was a judgment for the plain- 
 tiffs; and the city of Richmond having taken an exception to the 
 opinion and judgment of the court, applied to this court for a super- 
 sedeas; which was awarded. 
 
 ANDERSON, J. The power to tax rests upon necessity, and is 
 inherent in every sovereignty. It is included in the general grant of 
 legislative power; and reaches, as is said by Mr. Justice Cooley, "to 
 every trade or occupation; to every object of industry, use or enjoy- 
 ment; to every species of possession." "If the right to impose the 
 tax exists, it is a right which in its nature acknowledges no limits. 
 It may be carried to any extent in the State or Corporation which 
 imposes it, which the will of such State or Corporation may pre- 
 scribe." Cooley on Constitutional Limitations, ch. 14. p. 479-482. 
 And in the language of Chief J. Marshall, the power of taxing the 
 people and their property is essential to the very existence of gov- 
 ernment, and may be legitimately exercised upon the objects to which 
 it is applicable, to the utmost extent to which the government may 
 choose to carry it. The only security against its abuse is the struc- 
 ture of the government itself. The influence of the constituents 
 over their representative is the safeguard against its abuse. McCul- 
 lough v. Maryland, 4 Wheat. R. 316-428. It must always be con- 
 ceded that the proper authority to determine what should, and what 
 should not properly bear the public burden, is the legislative depart- 
 ment of the State. This is true not only of the State at large, but it
 
 OULD & CARRIXGTON V. RICHMOND. 557 
 
 is true also in respect to each municipality, or political division of 
 the State. But these municipal corporations have only such powers 
 as the Legislature of the State confers on them. Cooley 488. And 
 their powers are controlled by the constitution of the United States, 
 and of the State. The restrictions which they impose on the legis- 
 lative power of the State rest equally upon all the instruments of 
 the government created by it. Ib. p. 198. 
 
 The powers of public corporations are either express, implied, or 
 incidental. And except as to such powers as are incidental the char- 
 ter itself, or the general law under which they exist, is the measure 
 of the authority to be exercised. They have no inherent jurisdiction, 
 like the State, to make laws, or adopt regulations of government. 
 They are governments of enumerated powers, acting by a delegated au- 
 thority : so that while the State Legislature may exercise such powers 
 of government, within the description of legislative power, as are not 
 expressly or impliedly prohibited, the local authorities can exercise 
 those only which are expressly or impliedly conferred, and such as 
 are incidental, subject to such regulations and restrictions as are an- 
 nexed to the grant. Cooley 192. 
 
 With these general principles in view, we will now enquire, whether 
 the charter of the City of Richmond invests the municipality with 
 power to impose the tax complained of. And then if such power is 
 conferred, has it been properly exercised in this case? By section 69 
 of the charter, sep. acts of 1869-70 p. 138, it is provided that, "For 
 the execution of its powers and duties the city council may raise an- 
 nually, by taxes and assessments in said city, such sums of money as 
 they shall deem necessary to defray the expenses of the same, and 
 in such manner as they shall deem expedient, in accordance with 
 the laws of this State and of the United States/' This clause con- 
 fers the general power of taxation, except only as it may be lim- 
 ited by the laws of the State and the United States; and include^ 
 all powers and subjects of taxation. And as to the manner of laying 
 the tax, the council is invested with full discretion. And they are 
 authorized to lay a tax to defray the expenses of the city to an 
 amount which they may deem necessary. It seems to me that this 
 language is broad enough to embrace, not only a tax on real and per- 
 sonal property, but every other description of tax which the council 
 might deem necessary and proper, unless its meaning is limited and 
 circumscribed by what follows. 
 
 Whilst a lawyer's license authorizes him to practice law in any 
 court of the commonwealth, and it is not within the power of any
 
 558 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 municipality to deprive him of that right, or to take away his license, 
 it is a civil right and privilege, to which are attached valuable im- 
 munities, and pecuniary advantages, and is a fair subject of taxation 
 by the State, or by a municipal corporation where he resides and en- 
 joys the privilege. It is a vested civil right; yet it is as properly a 
 legitimate subject of taxation as property to which a man has a 
 vested right. I cannot perceive that there would not be as much 
 reason for saying that a man's property is not taxable because he 
 has a vested right to it, as for saying that a lawyer's license is not 
 taxable, because he has a vested right to it. 
 
 I am of opinion, therefore, that the power to tax a lawyer's license 
 is included in the general power of taxation given by the first clause 
 of sec. 69 ; and that it is not taken away by anything that follows. 
 
 It only remains to enquire, has it been constitutionally exercised 
 in this case? 
 
 By an ordinance of the council, the lawyers of Richmond were di- 
 vided into six classes; and the individuals of each class were as- 
 sessed with a certain amount of taxes; and a committee was ap- 
 pointed, charged with the duty of assigning them to the class to 
 which they respectively belonged. It is contended that the council 
 could not delegate this power to a committee. 
 
 That the power of taxation is an importantand delicate trust con- 
 fided to the council, and cannot be delegated by them to a committee 
 of their own body, or to any other agency, is unquestionably true. 
 It is a legislative power; and when granted to a municipality it can 
 only be executed by itself, or by such agencies or officers as the stat- 
 ute has pointed out. So far as its functions are legislative, it rests 
 in the discretion and judgment of the municipal body entrusted with 
 it; and that body cannot refer the exercise of the power to the dis- 
 cretion and judgment of its subordinates, or of any other authority. 
 Cooley, p. 204, 205, and cases cited. 
 
 But was the assignment of the lawyers to their respective classes a 
 legislative function? The enactment that the lawyers should be di- 
 vided into six classes, and that a tax of so much should be levied 
 upon each individual of a class, was legislative, and was performed 
 by the council itself. Was the inquiry as to which class the lawyers 
 should be respectively assigned, and the assignment of them to their 
 respective classes, a legislative or ministerial act? If it is a legisla- 
 tive function, the commissioners of the revenue, under a delegated 
 authority from the general assembly, have been performing yearly, 
 without question, legislative functions. It is a service which could
 
 OULD & CARRINGTON V. RICHMOND. 551) 
 
 not be well performed by the legislative body. It is the function of 
 a commissioner, in order to the execution of a legislative act, and is 
 ministerial; and it seems to me that it was competent for the coun- 
 cil to require the service to be performed by a committee of their 
 own body, as well as by a commissioner, or the general assessor. And 
 it was not more necessary that the action of said committee should 
 be reported to the council, and have its confirmation, than that sim- 
 ilar duties by a commissioner of the revenue should be reported to 
 and confirmed by the Legislature of the State. But the taxpayer 
 should be provided with ample remedies for redress, if he has been 
 aggrieved by the action of the committee. Whether the remedy pro- 
 vided in this case by the ordinance of the council is adequate or not, 
 there is no complaint by the appellees that any injustice has been 
 shown to them; and it is a question, it seems to me, for the council 
 and their constituents, and does not come within the province of 
 the courts. 
 
 It is objected, also, that the mode of ascertaining the class to which 
 the lawyers should be respectively assigned, was uncertain and wholly 
 inadequate to the attainment of justice, and vitiates the whole pro- 
 ceeding. If it be an income tax, as it is contended it was designed 
 to be, an assessment was necessary to ascertain what was the income 
 of the lawyer to be taxed. And if it was not an income tax, but a 
 license tax, that is a tax on the civil right or privilege conferred by 
 the license, the tax ought to be proportioned, as nearly as practi- 
 cable, to the value of that right and privilege. But, exact justice and 
 equality are not attainable, and consequently not required. Cooley 
 on Con. Lim. ; Slaughter's Case, 13 Gratt. 767 ; Eyre v. Jacob, 
 sheriff, 14 Gratt. 422, 434, 435; Gilkeson v. Frederick Justices, 13 
 Gratt. 577. 
 
 I do not think it was intended to be a tax on income. The classi- 
 fication of lawyers shows this. It was intended to be a tax on the 
 civil right and privilege. And it is true that the tax ought to be 
 proportioned, as nearly as practicable, as I have said, to the value 
 of the privilege. Justice and equality, which are of the essence of 
 constitutional taxation, require it. The act of the council requiring 
 the assignment of the lawyers into six classes, and the gradation of 
 the tax upon them, according to the class to which they were respect- 
 ively assigned, shows an intended approximation to equality; and if 
 the assignment is fair and judicious, as nearly attains it as is perhaps 
 practicable in a license tax. It is true that the principle upon which 
 this classification is made by the 5th section of the ordinance, which 
 is in relation to the classification of lawyers, doctors, &c., is not in
 
 560 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 terms expressed. The 3d section in relation to commission mer- 
 chants, brokers, &c. ; the 4th section in relation to "sellers by 
 wholesale or retail of wine or spirituous liquors;" the 7th section in 
 relation to "agents or sub-agents of any insurance company or office, 
 whose principal office shall be located out of the city;" and the 8th 
 section in relation to "express companies and telegraph companies, 
 having a place of business in the city," all adopt the method of clas- 
 sification, as in the 5th section; nor in either is the principle ex- 
 pressly stated upon which the classification shall be made. If the 
 tax upon lawyers is unconstitutional and void, upon this ground, it 
 is in all the other cases; which would be disastrous to the financial 
 condition of the city; and a question involving consequences of such 
 moment ought to be well considered by this court, before it declares 
 those ordinances unconstitutional and void, on this ground. 
 
 The llth section provides, "that the committee of finance shall 
 place each person and firm, employed in the trade or business re- 
 ferred to in sections 3, 4, 5, 7, and 8, in the class to which the com- 
 mittee shall be of opinion such person or firm properly belongs, look- 
 ing to all the circumstances of the case." Now while it is not ex- 
 pressed that the classification shall be made with reference to the 
 value of the civil right or privilege conferred by the license, that, it 
 seems to me is the obvious design and object of the classification, 
 and would be so understood. For what other object could a classi- 
 fication have been made, than to attain justice and equality as near 
 as practicable by levying a tax proportionate to the value of the priv- 
 ilege to the party taxed; and it is to this end that the committee is 
 instructed "to look to all the circumstances of each case." It might 
 have been better to have expressed the object and design of the clas- 
 sification as a guide to the committee ; but it seems to me that it is 
 manifest without being expressed. And the charter expressly invests 
 the council with full discretion to raise the necessary revenue, by 
 taxes and assessments, "in such manner as they shall deem expedient, 
 in accordance with the laws of this State and of the United States;''* 
 I am not aware that these provisions of the ordinance are in conflict' 
 with any law of the State or of the United States. That the discre- 
 tion reposed in the committee may be abused is possible; but not 
 more likely, I think, than that the same power might be abused by a 
 commissioner of the revenue. The council having by their act of" 
 legislation, required the lawyers to be placed in six different classes, 
 and declared what tax should be paid by the individuals composing 
 each class, directed one of its most important standing committees, 
 the committee of finance, to assign them respectively to such class as
 
 OULD & CABRINGTOX V. RICHMOND. 561 
 
 they should properly belong. It is fair to presume, that this com- 
 mittee is composed of intelligent, discreet, and trust-worthy gentle- 
 men, residing in different parts of the city, who would be informed 
 as to the relative standing of the lawyers in the city, and the extent 
 of their business, from their own observation, and from reputation 
 and would not be likely to err greatly in their determination as to 
 which class they should be respectively assigned. I should suppose 
 that there is not an intelligent business man in the city of Eich- 
 mond, such a one as should be selected as a councilman, and placed 
 on the committee of finance, who, if not sufficiently informed as to 
 the relative practice of every lawyer in the city, could not get suffi- 
 cient reliable information by inquiry, to enable him to determine, 
 with reasonable accuracy, to which of the six classes he should be 
 assigned, especially after a free interchange of views with the other 
 members of the committee. 
 
 It is true, that they might be mistaken in individual instances, 
 which I should think, however, would rarely be the case. But, as 
 such mistakes might occur, a remedy was provided for correcting 
 them, which was applied in this case. Xow, whether this was the 
 best mode for attaining justice in the classification of the lawyers, it 
 is not for me or the court to say. But I cannot perceive that it is 
 obnoxious to the objections urged against it in the argument; or 
 especially, that it furnishes ground for avoiding the tax by a judg- 
 ment of the court. That the confidence reposed in the committee 
 might be abused, is possible. But it is impossible to administer gov- 
 ernment without reposing confidence in public agents. A reasonable 
 confidence in human agents is essential to society and to the con- 
 duct of human affairs; and a law cannot be said to be unconstitu- 
 tional because it reposes a confidence in public agents which may be 
 abused. 
 
 As before said, there is no complaint that the tax imposed upon 
 the appellees in this case is unequal and unjust. I apprehend the 
 case was made in order to have an important principle as to the right 
 of taxation settled, for the benefit of all concerned, as well as the 
 immediate parties to this proceeding. It was believed that in this 
 assessment there was an encroachment upon the constitutional rights 
 of citizens; and this proceeding was properly instituted to test the 
 question. From the best consideration I have been able to give the 
 subject, my mind has been brought to a different conclusion. I do 
 not think that the city council have exceeded their powers in the im- 
 position of this tax. I am, therefore, of opinion, to reverse the judg- 
 ment of the court below. 
 36
 
 562 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 MONCORE, J., and CHRISTIAN, J., concurred in the opinion of 
 Anderson, J. 
 
 STAPLES AND BOULDIN, Js., dissented. 
 JUDGMENT REVERSED. 
 
 IV. REVOCATION OF TAX LICENSE. 
 METROPOLITAN BOARD OF EXCISE V. BARRIE ET AL. 
 
 Court of Appeals of New York. September, 1866. 
 34 New York, 657. 
 
 WRIGHT, J. In April, 1866, the legislature passed an act to regu- 
 late the sale of intoxicating liquors within the "Metropolitan Police 
 District of the State of New York," excluding the county of West- 
 chester. (Laws of 1866, chap. 598.) The act de- 
 clared "that from and after the first day of May, 1866, no person 
 or persons shall, within the said Metropolitan Police District, ex- 
 clusive of the county of Westchester, publicly keep or sell, give away 
 or dispose of any strong or spirituous liquors, wines, ale or beer, in 
 quantities less than five gallons at a time, unless he or they may be 
 licensed pursuant to the provisions of this act, and may be permitted 
 by it." (3.) 
 
 On the third and sixth days of May, and after the act took effect, 
 the defendants, Barrie and Currier, without being licensed pursuant 
 to its provisions, publicly sold, at their respective places of business 
 in Broadway, in the city of New York, to various persons, strong 
 and spirituous liquors, wines, ale and beer, in quantities less than 
 five gallons at a time, to be and which liquors were drank on their 
 premises; and the persons to whom such sales were severally made 
 were not travelers, and were known to the defendants not to be trav- 
 elers. Both the defendants had, in 1865, under the excise act of 
 1857 (Laws of 1857, ch. 628), received from the then commission- 
 ers of excise for the city and county of New York, a license to sell 
 strong and spirituous liquors and wines, to be drank in their houses 
 and on their premises, which licenses, by their terms were to con- 
 tinue in force till fifty days after the third Tuesday in May, 1866, 
 and at the time of the sales in question had not been revoked by 
 order of any court. The board of excise claimed to recover from 
 these parties, respectively, the penalty of fifty dollars for a violation
 
 METROPOLITAN BOARD V. BARRIE. 563 
 
 of the provisions of the act of April 14, 1866; and the questions 
 submitted were: 1st. Were they liable to pay to the plaintiffs, by 
 reason of such sales on the 3d and 6th of May, 1866, such penalty? 
 and, 2d. Is the act a valid and constitutional law? 
 
 A law prohibiting the indiscriminate traffic in intoxicating liquors, 
 and placing the trade under public regulation to prevent abuse in 
 their sale and use, violates no constitutional restraints. Is it not an 
 absurd proposition, that such a law, by its own mere force, deprives 
 any person of his liberty or property, within the meaning of the Con- 
 stitution, or that it infringes upon either of these secured private 
 rights ? 
 
 Yet this is the only ground its violators can occupy to raise any 
 question as to its validity. They are restrained of no liberty except 
 that of violating the law by engaging in a forbidden traffic ; and the 
 assumption is not even plausible, that the act works a deprivation of 
 a property to anyone, within the meaning of the constitutional re- 
 strictions upon legislative authority. It, in terms, it is true, revokes 
 licenses granted under the act of 1857, but that is no encroachment 
 upon any right secured to the citizen as inviolable by the funda- 
 mental law. These licenses to sell liquors are not contracts between 
 the State and the persons licensed, giving the latter vested rights, 
 protected on general principles and by the Constitution of the United 
 States, against subsequent legislation; nor are they property in any 
 legal or constitutional sense. They have neither the qualities of a 
 contract nor of property, but are merely temporary permits to do 
 what otherwise would be an offense against a general law. They 
 form a portion of the internal police system of the State ; are issued 
 in the exercise of its police powers, and are subject to the direction 
 of the State government, which may modify, revoke or continue 
 them, as it may deem fit. If the act of 1857 had declared that 
 licenses under it should be irrevocable (which it does not, but by its 
 very terms they are revocable), the legislatures of subsequent years 
 would not have been bound by the declaration. The necessary power 
 of the legislature over all subjects of internal police being a part of 
 the general grant of legislative power given by the Constitution, 
 cannot be sold, given away or relinquished. Irrevocable grants of 
 property and franchises may be made, if they do not impair the 
 supreme authority to make laws for the right government of the 
 State; but no one legislature can curtail the power of its successors 
 to make such laws as they may deem proper in matters of police. 
 (Alger v. Weston, 14 Johns. 231; People v. Morris, 13 Wend. 329;
 
 564 TAXATION OF BUSINESS AND PRIVILEGE. 
 
 State v. Holmes, 38 New Hamp. 225; Colder v. Kirby, 5 Gray, 
 597; Hun v. State,-! Ohio, 15; Wynehamer v. The People, 3 Kern, 
 378; License Cases, 5 How. U. S. R. 504; Butler v. Pennsylvania, 
 10 How. 416 ; Coates v. TVte Mayor, 7 Cow., 585 ; 2 Parsons on Con- 
 tracts, 538; 3 id. 5th ed. 556.) 
 
 Errors or mistakes in legislation are not to be referred to the judi- 
 ciary for correction, or its aid invoked, by men chafing under the 
 restraints of particular statutes, to nullify the legislative power. The 
 judgments should be affirmed. 
 
 Judgments affirmed. 
 
 
 
 Such a rule would not apply to a license to practice a profession such as 
 law, which once granted may not be taken away without due process of 
 law, generally a hearing before a court. Exp. Garland, 4 Wallace (U. S.) 
 334. But the legislature may impose new conditions on one engaged in a 
 profession and provide that one who does not fulfill them shall not practice 
 such profession, as where it provides that one convicted of a felony shall not 
 practice medicine. Hawker v. New York, 170 U. S. 189; Dent v. West 
 Virginia, 129 U. S. 114; Gray v. Connecticut, 159 U. S. 74. 
 
 PEOPLE EX EEL. PRESMEYER V. BOARD OF COMMIS- 
 SIONERS. 
 
 Court of Appeals of New York. November, 187%. 
 59 New York, 92. 
 
 GROVER, J. Section 8 of chap. 549, Laws of 1873 (page 859) 
 
 authorizes the board of excise, upon their own motion, 
 
 whenever they suspect any person having a license for the sale of 
 intoxicating liquors of having violated any of the provisions of the 
 acts in question, to summon such person before them to inquire into 
 the fact of such violation, and if they find him guilty, cancel his 
 license; and upon the complaint of any resident of the city, etc.. 
 that such person has violated any such provision, commands them to 
 summon such party and make inquiry as to the fact complained of. 
 Complaint was made to the board, by a sergeant of police, of Brook- 
 lyn, that the appellant, in substance, kept his saloon open on Sun- 
 day for the sale of and sold beer therein. Though this is not for- 
 mally stated in the complaint, yet the facts stated therein show, if 
 true, that this was done there at that time. That keeping open the
 
 PEOPLE V. BOARD OF COMMISSIONERS. 565 
 
 saloon on that day for the public sale of beer for a beverage was a 
 violation of the statute, requires no argument. 
 
 The counsel insists that section 8 is unconstitu- 
 tional, for the reason that it authorizes the conviction of a party of 
 a crime without a trial by jury. But it authorizes nothing more 
 than an inquiry into and determination of the question whether 
 the party licensed continues to be a suitable and proper person to 
 sell intoxicating liquors, the statute itself determining that a violator 
 of the excise laws, while holding a license, is not such a person. 
 That the power to license the sale of intoxicating liquors and to 
 cancel such license when granted is vested in the legislature, has 
 been determined by this court. (Metropolitan Board of Excise v. 
 Barrie, 34 N. Y. 657.) The mode and manner in which this shall 
 be done rests in the discretion of that body. 
 
 The order of the general term affirming the order of the Special 
 Term denying a writ of prohibition, must be affirmed with costs. 
 
 All concur. 
 
 Order affirmed.
 
 CHAPTER XIV. 
 TAXATION BY SPECIAL ASSESSMENTS. 
 
 j ~ I. LEGISLATIVE DISCRETION. 
 
 LITCHFIELD V. VERNON. 
 
 Court of Appeals of New York. September, 1869. 
 41 New York 123. 
 
 GROVER, J. The question whether the act of 1859, chap. 484 of 
 Laws, page 484, is unconstitutional and void, depends upon the in- 
 quiry whether the . assessments thereby authorized are made in the 
 exercise of the taxing power of the State or of that of eminent do- 
 main. If the former, the counsel for the appellant concedes them to 
 be valid. See People v. Mayor of Brooklyn (4 Comst. 419) ; The 
 Sun Insurance Company v. The Mayor, etc. (N. Y. 4 Seld. 241) ; 
 Town of Guilford v. The Board of Supervisors, Chenango County, 
 (3 Kern. 143.) If the latter, it is entirely clear that the act is void. 
 An examination of the case shows that, at the time of the passage 
 of the act, the Long Island Railroad Company had the right* of way 
 in a tunnel constructed in Atlantic street, Brooklyn, for a railroad 
 operated by steam, and were operating their road thereon; that the 
 legislature deemed it expedient to close the tunnel, grade the street, 
 lay a track upon the surface to be operated by horse power, etc., and 
 to authorize the making of a contract with the railroad company for 
 doing the work and effecting the changes for a sum not exceeding 
 $125,000. To carry into effect this design, the act in question was 
 passed, authorizing the commissioners, whose appointment was pro- 
 vided for in the act, to make the contract, and to make an assess- 
 ment for the payment of the contract price, together with the inci- 
 dental expenses upon the lands and premises situate in the district 
 specified in the act. This local assessment for those purposes, it is 
 apparent, was based upon the ground that the territory subjected 
 thereto would be benefited by the work and change in question. 
 Whether so benefited or not, and whether the assessment of the ex- 
 pense should for this, or any other reason, be made upon the dis- 
 trict, the legislature was the exclusive judge. The Constitution has 
 
 566
 
 LITCHFIELD V. VERXON. 567 
 
 imposed no restriction upon their power in this respect. See cases 
 cited, supra. The counsel for the appellant concedes that this is true 
 so far as closing the tunnel and grading the street are concerned, 
 but insists that compensating the company for abandoning the use 
 of steam and substituting therefor horse power, does not come within 
 the like principles. I am unable to see upon what grounds the power 
 of the legislature can be limited in respect to the latter, consistently 
 with the doctrine held by this court, in The Town of Guilford v. The 
 Board of Supervisors, supra. In that case, it was held, that the 
 legislature had the power to impose a tax upon the inhabitants of 
 the town to pay a claim that had no legal validity, and that could 
 in no way be enforced against the town. In other words, that it was 
 within the power of the legislature to impose a tax upon a locality 
 for any purpose deemed proper, and that its power in this respect is 
 not restricted by the constitution of the State. The other cases show 
 that when the legislature deem it proper to impose the burden upon 
 any specified locality they have the power of so doing. The act of 
 1859 must, therefore, be held constitutional and valid. The act of 
 1860, chapter 100, among other things, authorizes an assignment of 
 the assessments to the railroad company, in satisfaction of the money 
 to be paid for doing the work, and making the change in operating 
 the road from steam to horse power. To this I see no objection. It 
 in no ways affects or changes the rights of the owners of the lands 
 assessed. Whether the money, when collected upon the assessments, 
 is paid into the city treasury and then paid to the company, or 
 paid to the company directly, is immaterial to them. Whether the 
 act of 1863, chapter 298, relating to this assessment is constitu- 
 tional, depends upon the question whether the owners of the lands 
 upon which the assessments were made were personally liable for the 
 payment, or whether the lands only were liable therefor. Section 7 
 of the act of 1859, among other things, provides, that the collector 
 shall levy and collect the amount of the several assessments therein 
 mentioned in the same manner as the county tax is levied and col- 
 lected; and the same measures taken to enforce the collection there- 
 of, as are provided by law in regard to the county tax, and in addi- 
 tion the collector is clothed with the same powers as the collectors 
 in the city of Brooklyn. This places the assessments in question 
 upon the same footing as county taxes. That the latter, when as- 
 sessed upon residents, in respect of real or personal property, creates 
 a personal liability for payment, there can be no doubt. The stat- 
 utes point out the mode of enforcing this liability in a way more 
 efficacious than that provided by law for other liabilities. Taxes as-
 
 568 TAXATION BY SPECIAL ASSESSMENTS. 
 
 sessed upon non-resident real estate impose no personal liability upon 
 the owner. In respect to these, the collector has no duty except to 
 receive payment if offered, and if not, to make return to the proper 
 officer. This being so, the legislature had the power to provide such 
 remedy to enforce the liability, whether by action or otherwise, as it 
 deemed proper. The rule is well settled, that the remedy to enforce 
 rights is, at all times, within the control of the legislative power, 
 with the exception that it cannot deprive a party of all efficient rem- 
 edies to enforce rights based upon contract, as that would in effect 
 impair or destroy the obligation of the contract, which is prohibited 
 by the federal constitution. But new and additional remedies may 
 be provided, as in the present case. It is unnecessan*, in the pres- 
 ent case, to determine whether section 4 of the act of 1865, author- 
 izing the company to appoint a collector, is in conflict with section 
 2, article 10, of the Constitution; as the plaintiff, in bringing the 
 action, is not exercising the functions of any officer, but is acting as 
 a suitor only. The legislature, having power to authorize an action 
 for the collection of the assessment, had also power to provide who 
 should be plaintiff therein. This brings us to the only remaining 
 question in the case; and that is whether there is any competent evi- 
 dence authorizing a finding that a majority of the owners of land, 
 within the territory made subject to assessment, made application to 
 the common council, requesting them to make application to the 
 Supreme Court for the appointment of three commissioners, as pro- 
 vided by the first section of the act of 1859. That section provides 
 that the common council of the city of Brooklyn shall, upon petition 
 or application of the majority of the owners of the land, at the time 
 of the passage of the act, in the district proposed to be assessed 
 thereby, make application to the Supreme Court, at Special Term, 
 etc. The act itself is wholly silent as to how this essential fact 
 shall be proved. The act to consolidate the cities of Brooklyn, etc., 
 referred to in this section, for the mode of proceeding in procuring 
 the appointment of commissioners, contains nothing applicable to 
 the present case in this respect. The right of the common council 
 to apply for the appointment of the commissioners, lies at the foun- 
 dation of the whole proceeding. Unless this right existed, all the 
 proceedings in appointing the commissioners, and subsequent thereto, 
 are void. This right depends upon the question whether a majority 
 of the land owners petitioned the common council to proceed under 
 the act. In the absence of such petition, the common council had 
 no authority in the premises, and nothing could be done under the 
 act. The act does not provide for the determination of this fact by
 
 HAMMETT V. PHILADELPHIA. 569 
 
 the common council nor by the Special Term upon the presentation 
 of the petition for the appointment of the commissioners. The 
 plaintiff seeks to show that the defendant became liable to pay the 
 assessment. It was incumbent upon him to show the existence of 
 the facts creating the liability. The act being silent as to what 
 should be deemed proof of the fact that a majority of the land own- 
 ers petitioned the council, the plaintiff was bound to prove such fact 
 by competent common law evidence. This could be done by proof, 
 showing who were the owners of the land, at the time of the passage 
 of the act, and that a majority of such persons petitioned the com- 
 mon council, as required by the first section of the act. Neither the 
 application of the council to the court, nor the affidavit of the mayor, 
 accompanying such application, was evidence of this fact against the 
 defendant. (Sharp v. Speir, 4 Hill 76, and cases cited.) There 
 was no competent evidence of this fact given upon the trial, and 
 the exception to the findings of this fact by the judge was well taken. 
 Upon this ground the judgment should be reversed, and a new trial 
 ordered. 
 
 All the judges concurred for reversal, except Hunt, Ch. J., and 
 Mason, J., who were for affirmance, and Lott, J., who did not vote. 
 
 Judgment reversed, and a new trial ordered. 
 
 For the power of the legislature in New York to apportion taxation in 
 accordance with its ideas of benefit see People v. Mayor, 4 N. Y. 419, supra. 
 
 HAMMETT V. PHILADELPHIA. 
 
 Supreme Court of Pennsylvania. March, 1869. 
 65 Pennsylvania State, 
 
 This was a scire facias sur municipal claim by the City of Phila- 
 delphia, to the use of Charles E. Jenkins and Jonathan Taylor, 
 against Barnabas Hammett, issued July 18th, 1868. 
 
 On the 24th of October, 1868, judgment was entered for the 
 plaintiff, for want of a sufficient affidavit of defence, and damages 
 were assessed at $4462.14. The defendant took a writ of error and 
 assigned for error, that the court erred. 
 
 4. In not deciding that the ordinance and Act of Assembly were 
 respectively null and void by reason of their being in violation of 
 the constitution of the state, and of their being a delegation and ex-
 
 570 TAXATION BY SPECIAL ASSESSMENTS. 
 
 ercise of a power to impose upon a few individuals a heavy expendi- 
 ture, which should be borne by the public at large. 
 
 SHARSWOOD, J. It may be considered as a point fully settled and 
 at rest in this state, that the legislature have the constitutional 
 right to confer upon municipal corporations the power of assessing 
 the cost of local improvements upon the properties benefited. It is 
 a species of taxation; not the taking of private property by virtue of 
 eminent domain. 
 
 There is, indeed, no clause in the Constitution of Pennsylvania 
 which restricts the power of taxation in the legislature as is to be 
 found in the constitutions of many of our sister states. Yet it must 
 be confessed that there are necessary limits to it in the very nature 
 of the subject. It is very clear that the taxing power cannot be used 
 in violation of provisions in the Bill of Eights, everything in which 
 is "excepted out of the general powers of government, and shall for- 
 ever remain inviolate." There is no case to be found in this state, 
 nor, as I believe after a very thorough research, in any other with 
 limitations in the Constitution or without them in which it has 
 been held that the legislature, by virtue merely of its general powers, 
 can levy, or authorize a municipality to levy, a local tax for general 
 purposes -. 
 
 It may be shown logically, and that without difficulty, that such a 
 doctrine lands us in this absurd proposition: That the whole ex- 
 penses of government, general and local, may be laid upon the shoul- 
 ders of one man, if one could be found able to bear such a burden. 
 A conclusion so monstrous shows that the premises must be wrong. 
 Such a measure would not be taxation, but confiscation. 
 
 It remains to apply these principles to the case presented to us 
 upon this record. The original paving of a street brings the prop- 
 erty bounding upon it into the market as building lots. Before that, 
 it is a road, not a street. It is therefore a local improvement, with 
 benefits almost exclusively peculiar to the adjoining properties. Such 
 a case is clearly within the principle of assessing the cost on the lots 
 lying upon it. Perhaps no fairer rule can be adopted than the pro- 
 portion of feet front, although there must be some inequalities if the 
 lots differ in situation and depth. Appraising their market values, 
 and fixing the proportion according to these, is a plan open to favor- 
 itism or corruption, and other objections. No system of taxation 
 which the wit of man ever devised has been found perfectly equal.
 
 HAMMETT V. PHILADELPHIA. 571 
 
 But when a street is once opened and paved, thus assimilated with 
 the rest of the city and made a part of it, all the particular benefits 
 to the locality derived from the improvements have been received 
 and enjoyed. Kepairing streets is as much a part of the ordinary 
 duties of the municipality for the general good as cleaning, watch- 
 ing and lighting. It would lead to monstrous injustice and inequal- 
 ity should such general expenses be provided for by local assess- 
 ments. 
 
 This case indeed is still clearer than that which I have put of a 
 simple repairing. Broad street in front of the lot of the plaintiff in 
 error,- was paved only a few years ago in the ordinary way in which 
 all the other streets of the city have been paved with cobble stones 
 and whatever advantage there was in his owning property on so 
 wide and handsome a street was paid for by him in the increased 
 cost assessed upon him for the paving. Without any pretence that it 
 has been worn out and required to be replaced by another, it was 
 torn up, and a new and very expensive wooden pavement substituted. 
 The plaintiff in error did not remain silent. He protested and re- 
 monstrated, and filed a bill in equity to restrain the work before it 
 began. The city and their contractors can plead no equity against 
 him. It is said that it was all for his interest. But whether he was 
 mistaken or not as to his own interest, he was the judge of that, not 
 this court. The case is not to be decided upon any particular results 
 in this instance, but on general principles which can work with safety 
 and advantage to the public in all other cases. Mr. Hammett may 
 have been specially benefited; though we have no evidence of that on 
 this record, and we have no right to consider evidence derived from 
 any other source, but the next experiment may be unsuccessful and 
 
 ruinous The object of this improvement is not to 
 
 bring or keep Broad street as all the other streets within the built 
 up portions of the city are kept, for the advantage and comfort of 
 those who live upon it, and for ordinary business and travel, but to 
 make a great public drive a pleasure ground along which elegant 
 equipages may disport of an afternoon. We need look no further 
 than the preamble of the act authorizing the improvement of Broad 
 street, passed March 23d, 1866 (Pamph. L. 299), for evidence thaf 
 is for the general public good, not for mere peculiar local benefit. It 
 states it to be "for the uses and purposes of the public, and the 
 benefits and advantages which will enure to them by making and for- 
 ever maintaining Broad street, in the city of Philadelphia, for its 
 entire length as the same is now opened, or may hereafter be opened, 
 the principal avenue of said city." Thus we have special taxation
 
 572 TAXATION BY SPECIAL ASSESSMENTS. 
 
 authorized, for an object avowed on the fact of the act to be gen- 
 eral and not local, which relieves the case of all difficulty as to the 
 fact. We have only to advance the project a few steps further to 
 see how preposterous is the idea of paying for such an improvement 
 by assessments. In the natural course of things, we may expect that 
 it will be proposed to adorn this principal avenue with monuments, 
 statuary and fountains. Will their cost be provided for in the same 
 way? How much does this plan differ from a proposition to erect 
 new public buildings on Independence Square, and assess the cost 
 on lots situated on the neighboring streets? On the same principle 
 lots on the public squares could be assessed to pay for any new 
 project to beautify and adorn them, no matter how great the ex- 
 pense. It might be argued with equal plausibility that their value 
 was increased by the improvement. We must say at some time to 
 this tide of special taxation, thus far thou shalt go and no further. 
 To our own decisions, as far as they have gone, we mean to adhere, 
 but we are now asked to take a step much in advance of them. This 
 we would not be justified by the principles of the constitution in 
 doing. 
 
 Local assessments can only be constitutional when imposed to pay 
 for local improvements, clearly conferring special benefits on the 
 properties assessed, and to the extent of those benefits. They cannot 
 be so imposed when the improvement is either expressed, or appears 
 to be for general public benefit. 
 
 There have been several other points raised and discussed on this 
 record, but we are not obliged to consider them, and as the conclusion 
 at which we have arrived that the Act of Assembly of March 23d, 
 1866, so far as it authorizes the Councils of the city of Philadelphia 
 "to enact such ordinances or resolutions with such conditions or stip- 
 ulations as may require the cost of said improvements to be paid for 
 by the owners of property abutting on said street," is unconstitu- 
 tional and void, disposes of the whole case, it is unnecessary to dis- 
 cuss any other. 
 
 Judgment reversed. 
 
 READ, J., dissenting. 
 
 The rule of the principal case as to the impropriety of levying special 
 assessments for repaying streets is not usually adopted. See Cooley, Taxa- 
 tion, 3rd edition, p. 613.
 
 STATE V. CITY OF NEWARK. 573 
 
 STATE V. CITY OF NEWARK. 
 
 New Jersey Supreme Court. June, 1858. 
 3 Dutclier 186. 
 
 This certiorari was brought to set aside an assessment, made on 
 property of the New Jersey Railroad and Transportation Company, 
 for widening Market street in the city of Newark. 
 
 THE CHIEF JUSTICE. By the act to incorporate the city of New- 
 ark passed the 29th day of February, 1836, the common council are 
 authorized to cause a just and equitable assessment of the damages 
 and expenses incident to the opening and widening of streets in said 
 city to be made among the owners and occupants of all the houses 
 and lots intended to be benefited thereby, in proportion to the ad- 
 vantages each shall be deemed to acquire. Elmer's Dig. 656, 34. 
 By a supplement to the charter, approved March 16th, 185-4, Pamph. 
 Laws 395, 6, it is enacted, "that whenever any street, or part of a 
 street, in the city of Newark, occupied or used by the track of any 
 railroad company, shall require to be altered or widened for the con- 
 venience of public travel, and proceedings for the altering and widen- 
 ing the same shall have been taken under the act to which this is a 
 supplement, it shall be lawful for the commissioners, whose duty it 
 may be to make a just and equitable assessment of the whole amount 
 of the damages and expenses of such altering or widening among the 
 owners and occupants of all the houses and lots intended to be 
 benefited thereby, to assess such proportion of said damages and ex- 
 penses upon the corporation or company owning or using said rail- 
 road track as to them shall seem equitable and just; and such as- 
 sessment shall be a lien upon any property of said company in the 
 city of Newark, and may also be enforced in the same m?nner as the 
 assessment upon said owners and occupants of houses and lots in- 
 tended to be benefited thereby. 
 
 Under the provisions of the charter, the common council, in 1854, 
 took measures for altering and widening, for the convenience of 
 public travel, the part of Market street extending from the New Jer- 
 sey railroad depot to River street, on either side of the tracks of the 
 New Jersey Railroad and Transportation Company, which tracks are 
 owned or used by said company. The amount of the damages and 
 expenses of the altering and widening of said street were duly ascer- 
 tained at $28,788.37. Of this amount there was assessed upon nine 
 houses and lots of the railroad company about $1250, and upon the 
 company itself owning or using the railroad track $18,000, that be-
 
 574 TAXATION BY SPECIAL ASSESSMENTS. 
 
 ing the amount which it seemed to the commissioners equitable and 
 just to assess on the railroad company under the provisions of the 
 charter. 
 
 The company seek relief from the assessment made upon them as 
 owners of the railroad track, and also from the assessment upon their 
 houses and lots. 
 
 By the charter of the railroad company, it is enacted that the 
 company shall pay a tax of one-half of one per cent upon their cap- 
 ital stock, and that no other or further tax or imposition shall be 
 levied or imposed upon the company. Harrison 385, 18. Is the 
 assessment upon the company, as owners of the railroad, for the pur- 
 pose of widening Market street, a tax or imposition within the mean- 
 ing of the charter? 
 
 In the case of The City of Paterson v. The Society for Establish- 
 ing Useful Manufactures, (4 Zab. 385) it was held, by this court, 
 that an assessment upon city lots, for grading and paving the street 
 upon which they are situate, and for curbing and gravelling the side- 
 walk in front of the respective lots, was not a tax within the mean- 
 ing of that clause of the society's charter which exempted their prop- 
 erty from all taxes, charges, and impositions under the authority of 
 this state. 
 
 The same principle has been recognized and adopted in The Matter 
 of the Mayor of New York, 11 Johns R. 77; The Northern Liber- 
 ties v. St. Johns Church, 13 Penn. St. R. 104; Alexander and Wil- 
 son v. The Mayor, &c., 5 Gill 396. The subject has undergone an 
 elaborate examination in the more recent case of The Mayor and City 
 Council of Baltimore v. The Proprietors of Green Mount Cemetery, 
 7 Maryland R. 517. The charter of the cemetery company provided, 
 that the land appropriated as a cemetery, so long as used for that 
 purpose, "should not be liable to any tax or public imposition what- 
 ever/' It was held, nevertheless, that the cemetery company were not 
 exempt from a paving tax for paving a street in front of their prop- 
 erty; that the intent of the legislature was to exempt the property 
 from all taxation or impositions imposed for the purpose of revenue, 
 but not to relieve it from such charges as are inseparably incident 
 to its location in reference to other property. 
 
 It has been made a question, whether an assessment" upon property 
 to pay for opening or paving a street, in a ratio of the benefit con- 
 ferred, is a tax within the appropriate meaning of that term, or an 
 assessment for benefits conferred upon the property of the individual. 
 There are in the legislation of every state a variety of statutes, 
 whose primary design is the improvement of private property and in
 
 STATE V. CITY OF NEWARK. 575 
 
 which the public interest is merely incidental. To effectuate the 
 object of these laws, they authorize assessments, in the nature of 
 taxes, upon individual property, and direct the mode of enforcing 
 them. Of this nature are many statutes, public and private, in re- 
 lation to the claiming of drowned lands and the draining and fencing 
 of swamps and meadows. The immediate design of these acts is the 
 improvement of private property, each individual interested being re- 
 quired to contribute to the expense in proportion to his interest in 
 the property and to the benefit supposed to be conferred upon him. 
 The public are interested in this class of improvements only as they 
 tend to improve the salubrity of particular districts or to increase the 
 general wealth of the community. These assessments have little 
 analogy to public taxes, either in the purpose for which they are as- 
 sessed or in the mode of enforcing them; so a city ordinance re- 
 quiring every lot holder to drain the surface water from his lot, to 
 avoid the creation of a nuisance affecting the public health, and in 
 case of failure directing it to be done at public expense, and the 
 amount to be a lien upon the respective lots, though the design be 
 purel}* a public benefit, savors more of a merely police regulation 
 than a measure of taxation. On the other hand, where lands are 
 drained by public authority to preserve the public health, or sewers 
 are constructed for common drainage and at public expense, and the 
 amount thus drawn from the common treasury supplied by taxation 
 upon the whole community, or upon that portion of it specially 
 benefited, in either event the amount collected is a tax. 
 
 The theory upon which such assessments are sustained as a legiti- 
 mate exercise of the taxing power is, that the party assessed is locally 
 and peculiarly benefited over and above the ordinary benefit which, 
 as one of the community, he receives in all public improvements, to 
 the precise extent of the assessment. 23 Conn. 204. 
 
 If the assessment made upon the railroad company is to be re- 
 garded as an exercise of the power of taxation, without reference 
 to the special benefit conferred upon the company, then clearly the 
 assessment is illegal. 
 
 But it is insisted that the assessment made upon the company is 
 not a tax within the meaning of the exemption contained in the 
 charter of the company, and falls directly within the principle rec- 
 ognized by this court in The City of Paterson v. The Society, &c., 
 4 Zab. 386. 
 
 The assessment is, by the terms of the act, directed to be made, 
 and is in fact made, not upon the property of the company, but
 
 576 TAXATION BY SPECIAL ASSESSMENTS. 
 
 upon the corporation itself. It is not to be assessed (as in the 
 case of houses and lots intended to be benefited) in proportion to 
 the advantages the company shall be deemed to acquire; but the 
 commissioners are to .assess upon the company such portion of the 
 damages and expenses as to the commissioners shall deem equitable 
 and just. In what respect does this differ in principle from an 
 ordinary case of taxation? The assessment is not required to be 
 made with any regard to the benefit the improvement may confer 
 upon the company. From all that appears, the assessment may 
 have been graduated by a regard to the ability of the company to 
 pay to the value of its stock or to the amount of travel that 
 passed through the street upon the railroad. It does not appear 
 that the improvement added any value to the road itself or to the 
 stock of the company. 
 
 It is urged that the widening of the street gave increased facility 
 to the operations of the railroad, by relieving the crowded state of 
 the street, thereby diminishing the danger of accidents, allowing an 
 increased rate of speed, and thus indirectly adding to the value of 
 the road. But the same argument would apply with equal force to 
 sustain an assessment against the company for paving, lighting, 
 grading, or otherwise improving the streets and increasing the facili- 
 ties of travel; indeed it is difficult to imagine any purpose for 
 which a municipal tax could be raised that might not, in the same 
 way, be shown to be indirectly beneficial to the railroad company. 
 But in what mode is the corporation specially benefited over any 
 and every inhabitant of the city or traveller through its streets? 
 If the assessment against the railroad company may be sustainect 
 upon the ground of special benefits to the corporation from the in- 
 creased facilities of travel afforded by widening the street, an as- 
 sessment may be sustained upon the same ground against the owner 
 of every express wagon or stage coach that travels the street. The 
 assessment in this case is a clear exercise of the taxing power. It is 
 made for a public purpose, and confers no special benefit upon the 
 property of the company.
 
 FRENCH V. BARBER ASPHALT PAVING CO 57T 
 
 II. METHODS OF ASSESSMENT. 
 FRENCH V. BARBER ASPHALT PAVING COMPANY. 
 
 Supreme Court of the United States. October, 1900. 
 181 United States 824. 
 
 This was a suit instituted in the circuit court of Jackson County, 
 Missouri, by the Barber Asphalt Paving Company, a corporation 
 whose business it was to construct pavements composed of asphalt, 
 against Margaret French and others, owners of lots abutting on 
 Forest avenue in Kansas City, for the purpose of enforcing the lien 
 of a tax bill issued by that city in part payment of the cost of 
 paving said avenue. 
 
 The work was done conformably to the requirements of the Kan- 
 sas City charter, by the adoption of a resolution by the common 
 council of the city declaring the work of paving the street, and with 
 a pavement of a defined character, to be necessary, which resolu- 
 tion was first recommended by the board of public works of the 
 city. 
 
 The cost of the pavement was apportioned and charged against 
 the lots fronting thereon according to the method prescribed by the 
 charter, which is that the total cost of the work shall be apportioned 
 and charged against the lands abutting thereon according to the 
 frontage of the several lots or tracts of lands abutting on the im- 
 provement 
 
 The defendants pleaded and contended that the 
 
 charter of Kansas City purports to authorize the paving of streets 
 and to authorize special tax bills therefor, charging the cost thereof 
 on the abutting property according to the frontage, without refer- 
 ence to any benefits to the property on which the charge was made 
 and the special tax bills levied, and that such method of apportion- 
 ing and charging the pavement was contrary to and in violation of 
 the Fourteenth Amendment to the Constitution of the United 
 States. 
 
 The judgment of the circuit court of Jackson county was for the 
 plaintiff company for the amount due on the tax bill and for the 
 enforcement of the lien. From this judgment an appeal was taken 
 to the Supreme Court of Missouri, and, on November 13, 1900, the 
 judgment of the circuit court was affirmed, and thereupon a writ of 
 error from this court was allowed. 
 37
 
 578 TAXATION BY SPECIAL ASSESSMENTS. 
 
 Mr. Justice SHIRAS, after stating the case, delivered the opinion 
 of the court. 
 
 In its opinion in this case the Supreme Court of Missouri said 
 that "the method adopted in the charter and ordinance of Kansa? 
 City of charging the cost of paving Forest avenue against the ad- 
 joining lots according to their frontage had been repeatedly author- 
 ized by the legislature of Missouri, and such laws had received the 
 sanction of this court in many decisions. St. Louis v. Allen, 53 
 Mo. 44; St. Joseph v. Anthony, 30 Mo. 537; Neenan v. Smith, 
 50 Mo. 525 ; Kiley v. Cranor, 51 Mo. 541 ; Rutherford v. Hamil- 
 ton, 97 Mo. 543; Moberly v. Hogan, 131 Mo. 19; Farrar v. St. 
 Louis, 80 Mo. 379." 
 
 Accordingly the Supreme Court of Missouri held that the assess- 
 ment in question was valid, and the tax imposed collectible. And, 
 in so far as the constitution and laws of Missouri are concerned, 
 this court, of course, is bound by that decision. 
 
 But that court also held, against the contention of the lot owners, 
 that the provisions of the Fourteenth Amendment of the Constitu- 
 tion of the United States were not applicable in the case; and our 
 jurisdiction enables up to inquire whether the Supreme Court of Mis- 
 souri were in error in so holding. 
 
 The question thus raised has been so often and so carefully dis- 
 cussed, both in the decisions of this court and in the state courts, 
 that we do not deem it necessary to again enter upon a considera- 
 tion of the nature and extent. of the taxing power, nor to attempt 
 to discover and define the limitations upon that power that may be 
 found in constitutional principles. 
 
 We do not deem it necessary to extend this opinion by referring 
 to the many cases in the state courts, in which the principles of the 
 foregoing cases have been approved and applied. It will be suffi- 
 cient to state the conclusions reached, after a review of the state 
 decisions, by two text-writers of high authority for learning and ac- 
 curacy : 
 
 "The major part of the cost of a local work is sometimes col- 
 lected by general tax, while a smaller portion is levied upon the 
 estates specially benefited. 
 
 "The major part is sometimes assessed on estates benefited, while 
 the general public is taxed a smaller portion in consideration of ft 
 smaller participation in the benefits.
 
 FRENCH V. BARBER ASPHALT PAVIXG CO 571) 
 
 "The whole cost in other cases is levied on lands in the immedi- 
 ate vicinity of the work. 
 
 "In a constitutional point of view, either of these methods is ad- 
 missible, and one may sometimes be just and another at other 
 times. In other cases it may be deemed reasonable to make the 
 whole cost a general charge, and levy no special assessment what- 
 ever. The question is legislative, and, like all legislative ques- 
 tions, may be decided erroneously; but it is reasonable to expect 
 that, with such latitude of choice, the tax will be more just and 
 equal than it would be were the legislature required to levy it by 
 one inflexible and arbitrary rule." Cooley on Taxation, 447. 
 
 "The courts are very generally agreed that the authority to re- 
 quire the property specially benefited to bear the expense of local 
 improvements is a branch of the taxing power, or included within 
 it Whether the expense of making such improve- 
 ments shall be paid out of the general treasury, or assessed upon 
 the abutting or other property specially benefited, and, if in the 
 latter mode whether the assessment shall be upon all property found 
 to be benefited, or alone upon the abutters, according to frontage 
 or according to the area of their lots, is according to the present 
 weight of authority considered to be a question of legislative ex- 
 pediency." Dillon's Municipal Corporations, vol. 2, section 752, 
 4th ed. 
 
 This array of authority was confronted in the courts below, with 
 the decision of this court in the case of Norwood v. Baker, 172 U. 
 S. 269, which was claimed to overrule our previous cases, and to 
 establish the principle that the cost of a local improvement cannot 
 be assessed against abutting property according to frontage, unless 
 the law, under which the improvement is made, provides for a pre- 
 liminary hearing as to the benefits to be derived by the property to 
 be assessed^ 
 
 But we agree with the Supreme Court of Missouri in its view 
 that such is not the necessary legal import of the decision in Nor- 
 wood v. Baker. That was a case where by a village ordinance, ap- 
 parently aimed at a single person, a portion of whose property was 
 condemned for a street, the entire cost of opening the street, in- 
 cluding not only the full amount paid for the strip condemned, but 
 the costs and expenses of the condemnation proceedings, was thrown 
 upon the abutting property of the person whose land was con- 
 demned. This appeared, both to the court below and to a majority 
 of the judges of this court, to be an abuse of the law, an act of 
 confiscation, and not a valid exercise of the taxing power. This
 
 580 TAXATION BY SPECIAL ASSESSMENTS. 
 
 court, however, did not affirm the decree of the trial court award- 
 ing a perpetual injunction against the making and collection of any 
 special assessments upon Mrs. Baker's property, but said: 
 
 "It should be observed that the decree did not relieve the abut- 
 ting property from liability for such amount as could be properly 
 assessed against it. Its legal effect, as we now adjudge, was only 
 to prevent the enforcement of the particular assessment in question. 
 It left the village, in its discretion, to take such steps as were 
 within its power to take, either under existing statutes or under 
 any authority that might thereafter be conferred upon it, to make a 
 new assessment upon the plaintiff's abutting property for so 
 much of the expenses of the opening of the street as was found 
 upon due and proper inquiry to be equal to the special benefits 
 accruing to the property. By the decree rendered the court avoided 
 the performance of functions appertaining to an assessing tribunal 
 or body., and left the subject under the control of the local author- 
 ities designated by the State." 
 
 That this decision did not go to the extent claimed by the 
 plaintiff in error in this case is evident, because in the opinion 
 of the majority it is expressly said that the decision was not 
 inconsistent with our decisions in Parsons v. District of Columbia, 
 170 U. S. 45, 56, and in Spencer v. Merchant, 125 U. S. 345, 357. 
 
 It may be conceded that courts of equity are always open to 
 afford a remedy where there is an attempt, under the guise of legal 
 proceedings, to deprive a person of his life, liberty or property, 
 without due process of law. And such, in the opinion of the 
 majority of the judges of this court, was the nature and effect 
 of the proceedings in the case of Norwood v. Baker. 
 
 But there is no such a state of facts in the present case. Those 
 facts are thus stated by the court of Missouri : 
 
 "The work done consisted of paving with asphaltum the roadway 
 of Forest avenue in Kansas City, thirty-six feet in width, from 
 Independence avenue to Twelfth street, a distance of one-half a mile. 
 Forest avenue is one of the oldest and best improved residence 
 streets in the city, and all of the lots abutting thereon front the 
 street and extend back therefrom uniformly to the depth of "an 
 ordinary city lot to an alley. The lots are all improved and used 
 for residence purposes, and all of the lots are substantially on the 
 grade of the street as improved, and are similarly situated with 
 respect to the asphalt pavement. The structure of the pavement 
 along its entire extent is uniform in distance and quality. There 
 is no showing that there is any difference in the value of any lots 
 abutting on the improvement."
 
 WASHINGTON AVENUE. 581 
 
 What was complained of was an orderly procedure under a 
 scheme of local improvements prescribed by the legislature and 
 approved by the courts of the State as consistent with constitu- 
 tional principles. 
 
 The judgment of the Supreme Court of Missouri is affirmed. 
 
 MR. JUSTICE HARLAN (with whom concurred MR. JUSTICE WHITE 
 and MR. JUSTICE MCKENNA) dissenting. 
 
 WASHINGTON AVENUE. 
 
 Supreme Court of Pennsylvania. October, 1871. 
 69 Pennsylvania State 352. 
 
 On the 14th of September, 1870, the court (Stowe and Collier, 
 JJ.) decreed an injunction against the commissioners, restraining 
 them from collecting the tax under cover of the Act of 1870. 
 
 The commissioners appealed to the Supreme Court, and assigned 
 the decree for error. 
 
 AGNEW, J. This case presents a new question upon the power 
 of taxation : the authority of the legislature to compel the owners 
 of farm lands, lying within one mile on each side of a public 
 highway, to pay for grading, macadamizing, and improving it, 
 by an assessment upon their lands by the acre. It is not a case 
 of municipal taxation by a county, township, city or borough, for 
 local improvements. The law created a corporation of seven com- 
 missioners to take charge of the avenue, make the improvements, 
 lay and collect the taxes, and provide for the collection of tolls 
 for its use. The road has no respect to township authorities, town- 
 ship lines, or the mode of levying township taxes. It is not a case 
 of taxation of frontage, for the lands of the plaintiffs in the bill 
 do not abut upon the avenue, but merely lie within the prescribed 
 lines of taxation. It is not a case of local improvement, and taxa- 
 tion therefor, upon those exclusively, or even those peculiarly 
 benefited; for the master finds that some of the plaintiffs do not 
 use the avenue, but travel on parallel roads, that persons two miles 
 outside, and on each side of the lines of taxation are nearly, or 
 quite, as much benefited as those within these lines, and that own- 
 ers of property and the public, far beyond the southern terminus 
 of the avenue in the direction of Canonsburg and Washington
 
 582 TAXATION BY SPECIAL ASSESSMENTS. 
 
 are greatly benefited. In short he finds that the proposed improve- 
 ment will be a general public benefit. 
 
 Washington avenue is but seven miles long, passing through 
 six townships and part of a seventh; but if this mode of taxation, 
 to grade, macadamize and improve it, can be maintained, the 
 legislature, on the same principle, can make a turnpike, a canal, 
 a railroad, or any other highway across the state, and compel 
 the owners of land within one, or any fixed number of miles, to 
 pay for it, and can assess the cost per acre, not only at $6, $4 
 and $3 per acre, as in this law, but at sixty, forty, thirty, or any 
 number of dollars, necessary to build the highway. If this be 
 legitimate taxation, it has no bounds, for it must be conceded 
 that the power of taxation, properly so called, has no limit in the 
 Constitution, and is bounded only by the necessities of the state 
 or the will of the people. 
 
 The practice of municipal taxation by counties, townships, cities 
 and boroughs for local objects, had its origin in necessity and con- 
 venience. Hence roads, bridges, culverts, sewers, pavements, 
 school-houses, and like local improvements, are best made through 
 the municipal divisions of the state, and paid for by local taxa- 
 tion. These have always been supported as proper exercises of the 
 taxing power. Nor is this mode of taxation inconsistent with our 
 notions of the right of private property and of the equality of 
 burdens; for each municipality in its turn (sooner or later) by a 
 tax on all its inhabitants pays only for what it makes and enjoys 
 within its own limits, and thus in the course of time the burthen 
 is equalized upon all, as every portion of the state makes its own 
 improvements and enjoys their peculiar benefits. The practice was 
 followed by another advance in the local mode of taxation. In 
 cities and towns where population was dense the authorities began 
 to make improvements of special advantage to certain of the citi- 
 zens at their expense; such as footwalks in the front of dwellings, 
 and pavements in those streets which were well built up, and 
 where good carriage-ways were needed. Here, too, though a step far 
 in advance of the system of general taxation, our notions of private 
 right were not violated; for the advantages of the owners were so 
 clear in the promotion of their convenience, and the enhanced 
 value of their lots, caused by improved footwalks and carriage- 
 ways, that the burthen was duly compensated, and again equality 
 was produced as each street or alley came to be paved. So far. 
 public opinion and ancient and long-continued legislative practice 
 have sustained local taxation with great unanimity, ajad this i<
 
 WASHINGTON AVENUE. 583 
 
 strong evidence of the true interpretation of the constitutional 
 power of the legislature to authorize municipal taxation of this 
 sort. Indeed, the general acquiescence of the people in this 
 exercise of the power is so clear, that few cases are to be found 
 in the books, wherein any question has been made upon the power 
 itself. 
 
 Next came another step forward in the exercise of the power 
 of local taxation, but one more doubtful, and at first view not so 
 easily perceived to be within the legislative power; that is to say, 
 the assessment of the property of one man to pay the compensation 
 due to another whose property has been taken for a public use. 
 Here the right to assess seems to be further removed from the 
 true source of the power, and it is more difficult to discern the lia- 
 bility of the few to pay what the state herself seemingly should 
 pay by general taxation, for property taken under the power of 
 eminent domain. 
 
 The exercise of this power for benefits ... is not 
 by way of eminent domain, in the usual sense of this term, for it is 
 not a taking at all, followed by compensation for the taking; 
 but it is a special mode of taxation, which equalizes burdens by 
 a counterbalance of benefits, whereby those benefited more pay 
 more, and those benefited less pay less. It is thus special as con- 
 tradistinguished from general taxation, but not special as making 
 one man to pay all or more than his just proportion of a common 
 burden. General taxation pays no regard to equality of burden, 
 further than to lay the tax in proportion to the amount of the 
 assessable property of each tax-payer throwing out of view all ques- 
 tions of special benefit. So long, therefore, as the benefits of each 
 tax-payer are justly and impartially assessed under the special sys- 
 tem, I cannot see that the general system is more just or impartial. 
 Indeed, if faithfully executed the special system seems to be more 
 equal and just, for, under the general system, some may be greatly 
 benefited more than others, and yet pay but a small proportion of 
 the tax, considering what they receive. For example, a poor 
 man may send many children to school, while a man of large 
 property, having none to send, may pay a large tax and a man 
 being greatly benefited by a public road may pay a very small 
 proportion of the tax which keeps it up. 
 
 Taxation, according to benefits received, is neither unequal nor 
 unjust, and cannot, therefore, come into conflict with those clauses
 
 584 TAXATION BY SPECIAL ASSESSMENTS. 
 
 in the Bill of Rights, which regard as sacred the right of private 
 property. So long, therefore, as a law faithfully and reasonably 
 provides for a just assessment according to the benefits conferred, 
 and does not impose unfair and unequal burdens, it cannot be 
 said to exceed the legislative power of taxation, when exercised 
 for proper objects. It is on this ground only that assessment 
 according to the frontage of property on a public street to pay for 
 its opening, grading, and paving, is to be justified. As a prac- 
 tical result, in cities and large towns, the per-foot front mode of 
 assessment reaches a just and equal apportionment in most cases. 
 Hence this mode has been deemed a reasonable exercise of the 
 taxing power in such places, with a view to taxation according to 
 the benefits received. Whatever doubt might have been originally 
 entertained of it as a substitute, which it really is, for actual 
 assessment by jurors or assessors under oath, it has been so often 
 sanctioned by decision, it would ill become us now to unsettle 
 its foundation by disputing its principle. But it is an admitted 
 substitute, only because practically it arrives, as nearly as human 
 judgment can ordinarily reach, at a reasonable and just apportion- 
 ment of the benefits on the abutting properties. Hence the fair- 
 ness of the rule charging benefits by frontage was a conceded point 
 in Hammett v. The City of Philadelphia, 15 P. F. Smith 155. 
 But this rule, as a practical adjustment of proportional benefits, can 
 apply only to cities and large towns, when the density of popu- 
 lation along the street, and the small size of lots, make it a rea- 
 sonably certain mode of arriving at a true result. 
 
 To apply it to the country and to farm-lands would lead to 
 such inequality and injustice as to deprive it of all soundness as 
 a rule, or as a substitute for a fair and impartial valuation of 
 benefits in pursuance of law; so that at the very first blush, every 
 one would pronounce it to be palpably unreasonable and unjust. 
 Judged by this rule for deciding in a question of constitutional 
 power, the law in this case cannot stand. 
 
 In the present case, an examination of the facts in which the 
 per-foot frontage rule is based, discloses at once the want of anal- 
 ogy between large farms with single occupants or owners, or wild 
 and untenanted land, in the country, and the small lots of a 
 crowded street in a populous town. The legislature, therefore, 
 made a mistake in fixing such a burden upon the lands along 
 the route of this avenue. It is in fact nothing more than a law 
 to coerce certain landowners to pay for a public improvement in
 
 WASHINGTON AVENUE. 585 
 
 which their interest is no greater, and as to some of them, not so 
 great as that of many others who pay nothing; and it offends 
 against the clear intent and spirit of the Bill of Rights. There 
 is no case in our books, wherein the legislative power to tax has 
 been maintained with greater vigor and ability than Sharpless v. 
 The City of Philadelphia, 9 Harris, yet even there, the then Chief 
 Justice admits (p. 166), that the exercise of the power may be 
 forbidden by clear implication, as well as express restriction. "It 
 is not every act the legislature may choose to call a tax-law that 
 is constitutional." "The whole public burden," he contends, "can- 
 not be thrown upon a single individual, under pretence of taxing 
 him." This is a concession that taxation has a limit per se, and is 
 not always co-extensive with legislative exaction. When, therefore, 
 the Constitution declares in the ninth article, that among the 
 inherent and indefeasible rights of men is that of acquiring, pos- 
 sessing, and protecting property, that the people shall be secure 
 in their possessions, from unreasonable seizures, that no one can 
 be deprived of his property unless by the judgment of his peers, 
 or the law of the land that no man's property shall be taken 
 or applied to public use without just compensation being made 
 that every man for an injury to his lands or goods shall have 
 remedy by due course of law, and right and justice administered 
 without sale, denial or delay and that no law impairing contracts 
 shall be made and when the people, to guard against transgres- 
 sions of the high powers delegated by them, declared that these 
 rights are excepted out of the general powers of government, and 
 shall forever remain inviolate, they, for their own safety, stamped 
 upon the right of private property, an inviolability which cannot 
 be frittered away by verbal criticism on each separate clause, 
 nor the united fagot broken, stick by stick, until all its strength 
 is gone. 
 
 There is a clear implication from the primary declaration of 
 the inherent and indefeasible right of property, followed by the 
 clauses guarding it against specific transgressions, that covers it 
 with an aegis of protection against all unjust, unreasonable and 
 palpably unequal exactions under any name or pretext. Nor is 
 this sanctity incompatible with the taxing power, or that of emi- 
 nent domain, where for the good of the whole people, burdens 
 may be imposed or property taken. 
 
 I admit that the power to tax is unbounded by any express limit 
 in the Constitution that it may be exercised to the full extent 
 of the public exigency. I concede that it differs from the power
 
 586 TAXATION BY SPECFAL ASSESSMENTS. 
 
 of eminent domain, and has no thought of compensation by way of 
 a return for that which it takes and applies to the public good, 
 further than all derive benefit from the purpose to which it is 
 applied. But nevertheless taxation is bounded in its exercise by its 
 own nature, essential characteristics and purpose. It must therefore 
 visit all alike in a reasonably practicable way of which the legis- 
 lature may judge, but within the just limits of what is taxation. 
 Like the rain it may fall upon the people in districts and by 
 turns, but still it must be public in its purpose, and reasonably 
 just and equal in its distribution, and cannot sacrifice individual 
 right by a palpably unjust exaction. To do so is confiscation, not 
 taxation, extortion, not assessment, and falls within the clearly im- 
 plied restriction in the Bill of Eights. 
 
 It is found by the master, and if it had not been found by 
 him, it is perfectly obvious, that this avenue will be one of general 
 public benefit; and especially that it will be of great convenience 
 and individual benefit to citizens and taxpayers, beyond the limit 
 of taxation along the road, both laterally and terminally. 
 
 Indeed, beyond its southern terminus its benefits reach a con- 
 siderable distance into the county of Washington. This brings 
 it within the principle of Hammett v. The City of Philadelphia, 
 supra; expressed in these words, at the conclusion of the opinion 
 of our brother Sharswood: "Local assessments can only be con- 
 stitutional when imposed to pay for local improvements, clearly 
 conferring special benefits on the properties assessed, and to the 
 extent of these benefits. They cannot be imposed when the im- 
 provement is either expressed, or appears to be, for general benefit." 
 I concurred in that opinion, and I see no reason to regret my 
 concurrence; but on the contrary, I see in the present case much 
 to confirm it; and the examination I have just made into the 
 power of special taxation, it seems to me, tends to confirm and 
 strengthen what was so well reasoned in Hammett v. The City. 
 Indeed I consider it a fortunate circumstance that that case came 
 up, for it led into an inquiry into the power of special taxation, 
 which was in danger of running wild by insensible degrees and lead- 
 ing, before we had become aware of it, into the exercise of a bas- 
 tard power, dangerous to the right of private property, and vio- 
 lative of the provisions in the Bill of Rights, placed there for its 
 protection. In questions of power exercised by agents, it sometimes 
 is the misfortune of communities to be carried, step by step, into 
 the exercise of illegitimate powers without perceiving the progres- 
 sion, until tlie usurpations become so firmly fixed by precedents,
 
 WEIGHT V. CITY OF CHICAGO. 587 
 
 it seems to be impossible to recede or to break through them. The 
 majority opinion in that case did not then, and this opinion does 
 not now, dispute the long-recognized power of local taxation for 
 local improvements, according to the benefits conferred; but they 
 meet and dispute departures from that power, which if recog- 
 nized, will land in the overthrow of the right of private property. 
 Laws which cast the burdens of the public on a few individuals, 
 no matter what the pretence, or how seeming their analogy to con- 
 stitutional enactments, are in their essence despotic and tyrannical, 
 and it becomes the judiciary to stand firmly by the fundamental 
 law, in defence of those general, great, and essential principles 
 of liberty and free government, for the establishment and perpetu- 
 ation of which the Constitution itself was ordained. Should we 
 now suffer this law to pass without judicial criticism and con- 
 demnation upon a false analogy of the frontage rule in cities and 
 large towns, we should leave open a door for future impositions 
 upon private property, so wide and specious, errors the most odious 
 and of enormous proportions would enter in. 
 For these reasons the decree below is affirmed. 
 
 III. POWERS OF LOCAL AUTHORITIES. 
 WEIGHT ET AL. V. CITY OF CHICAGO. 
 
 Supreme Court of Illinois. April, 1858. 
 20 Illinois, 252. 
 
 This was an application for judgment against certain property 
 for nonpayment of a special assessment, levied by the common 
 council of the city of Chicago, upon said property for dredging, 
 or otherwise deepening the Chicago river and its branches, between 
 the west line of Franklin street, north line of Lake street, north 
 line of Kinzie street, and the established dock lines, and which 
 assessment was ordered by said common council, upon the report 
 and recommendation of the city superintendent of said city of 
 Chicago. There was an order of sale, under the assessment, of cer- 
 tain lots benefited, the owners of which lots sue out this writ of 
 error. 
 
 CATON, C. J. We have arrived at our conclusions in this case 
 with reluctance. That there is as much propriety in requiring
 
 588 TAXATION BY SPECIAL ASSESSMENTS. 
 
 the owners of property benefited by the deepening of the harbor, to 
 pay the expenses of the improvement, as there is in requiring those 
 benefited by widening it, or improving a street, would seem to be 
 self-evident. To say that the owner of a dock, which is useless 
 because of the want of water to bring vessels to it, shall not pay 
 the expense of deepening the harbor in front so as to make it 
 valuable, while the owner of the lot shall be compelled to pay for 
 paving the street in its neighborhood, we cannot doubt is unjust, 
 and had we the making of the laws, we could not hesitate to affirm 
 this judgment. Our duty is confined to finding out what the 
 laws are, and expounding them. It is admitted in the argument, 
 for it could not be denied, that there is no provision in the city 
 charter, and no law upon the statute book authorizing special 
 assessments to deepen the river, and it cannot be pretended that 
 they are authorized by the common law. The city government 
 has express authority to raise funds by general taxation for general 
 purposes. It has general authority by the second clause of the 
 fourth section of the fourth chapter of its charter, "to remove 
 and prevent all obstructions in the waters which are public high- 
 ways in said city, and to widen, straighten and deepen the same," 
 and by the fifty-third clause of the same section, very ample juris- 
 diction over the harbor is conferred upon the city government, and 
 the extent of the harbor is defined. By the fifty-fourth clause of 
 the same section, exclusive control is given to the city govern- 
 ment over the streets, alleys, sidewalks and bridges of the city, 
 and to open, widen and straighten the same, and to put drains and' 
 sewers therein. By conferring these powers, it was not supposed 
 by the legislature that authority was given to levy special assess- 
 ments upon the property benefited thereby to pay for such improve- 
 ments. If this were not sufficiently manifest from the fact that 
 these provisions are silent about any such authority, it becomes 
 so when we see that by other provisions of the charter express 
 authority is given to levy such special assessments to defray the 
 expenses of a part of such improvement. The sixth and seventh 
 chapters of the charter are devoted to the subject of the improve- 
 ment of streets, etc., and define for what improvements special 
 assessments may be laid upon the property benefited, and the mode 
 of levying and collecting them, the particular provisions of which 
 it is unnecessary to state. It is enough that the legislature deemed 
 it necessary to make snecial provisions, granting particular author- 
 ity to levy special assessments for certain specified improvements. 
 It shows that there was no intention to grant authority to make
 
 WEIGHT V. CITY OF CHICAGO. 589 
 
 such special assessments by simply conferring authority to make 
 the improvements. This view is more especially confirmed, if pos- 
 sible, by the fact that the legislature has, by a separate clause, con- 
 ferred special authority upon the common council to levy special 
 assessments upon property benefited thereby, for widening the 
 river. This is found in the fifth section of the act of 27th Febru- 
 ary, 1845, concerning wharfing privileges in Chicago, and which 
 is substantially an amendment to the city charter. That section 
 authorizes the common council to widen the Chicago river and its 
 branches within the city, by cutting away lots and streets on its 
 borders, and "such proceedings shall be had for the condemnation 
 and appropriation of such lot or lots or part of a lot, and the 
 assessment of damages and benefits, as are authorized and directed 
 by the act to incorporate the city of Chicago and the acts amend- 
 ing the same, for the opening of streets and alleys; and the pro- 
 visions of said act shall apply to the widening of said river and 
 its branches so far as they are applicable." This evidently refers 
 to and adopts the sixth chapter of the city charter, the tenth section 
 of which expressly authorizes special assessments upon property 
 benefited by the improvement. While we thus find a special pro- 
 vision authorizing by a fair and reasonable construction special 
 assessments to widen the river, there is no authority anywhere to 
 be found, even by implication, for such assessments to deepen the 
 river, and this special provision in the one case and not in the other, 
 by every known rule for construing statutes, is a clear indication 
 of the legislative will, that no such power was intended to be 
 granted in the case omitted. We must hold then that this special 
 assessment was void for the simple reason that the legislature has 
 not seen proper to confer any authority to levy it. Without law it 
 could not be done. 
 
 The judgment must be reversed. 
 
 Judgment reversed.
 
 590 TAXATION BY SPECIAL ASSESSMENTS. 
 
 PHILADELPHIA V. PENNSYLVANIA HOSPITAL. 
 
 Supreme Court of Pennsylvania. October, 1891. 
 143 Pennsylvania State, 361. 
 
 Opinion, Mr. Justice STERRETT: 
 
 In' this action of scire facias sur municipal claim for curbing, 
 etc., the defendant's affidavit of defense was adjudged insufficient, 
 and judgment was accordingly entered in favor of plaintiff for 
 the amount of its claim. From that judgment this appeal was 
 taken by defendant. The facts are fully presented in the statement 
 of claim and affidavit of defence. There is no question as to the 
 curbing having been properly done, nor as to the cost thereof. 
 The sole question is whether, upon any legal ground, either as a tax 
 or under the police power of the city, the assessment in question 
 can be sustained. 
 
 It is contended by defendant that an assessment for curbing is 
 a tax; and inasmuch as its "estate and property, both real and 
 personal, are by law exempt from the payment of tax of any kind 
 whatsoever," the plaintiff's case cannot be enforced; and in support 
 of the position, Olive Cemetery Co. v. Philadelphia, 93 Pa. 129, 
 and other taxes, recognizing the right of local taxation for certain 
 local purposes are cited. But it is a mistake to assume that the 
 authority vested in municipal corporations to require owners to curb, 
 pave, and keep in repair the sidewalks in front of their respective 
 properties, rests upon the same basis as the right of local taxation 
 recognized in the cases referred to. There is a marked distinc- 
 tion between them. In the former, a duty is imposed on the 
 property owner in the nature of a police regulation. In the latter, 
 no such duty is cast upon him. This distinction was clearly pointed 
 out by the present Chief Justice in Wilkinsburg Bor. v. Home for 
 Aged Women, 131 Pa. 117, which, in principle, is identical with 
 this. 
 
 In Cooley on Taxation, 398, the learned author says: "The cases 
 of assessments for the construction of walks by the sides of the 
 streets in cities and other populous places are more distinctly refer- 
 able to the power of police. These footwalks are not only required, 
 as a rule, to be put and kept in proper condition for the use of 
 the adjacent proprietors, but it is quite customary to confer by 
 municipal charters, full authority upon municipalities to order the 
 walks, of a kind and quality by them prescribed, to be con- 
 structed by the owners of adjacent lots at their own expense, within
 
 PHILADELPHIA V. PENNSYLVANIA HOSPITAL. 591 
 
 a time limited by the order for the purpose; and that, in case 
 of their failure so to construct them, it shall be done by the public 
 authorities, and the cost collected from such owners or made a lien 
 upon their properties. When this is done, the duty must be looked 
 upon as being enjoined as a regulation of police, made because of 
 the peculiar interest such owners have in their walks, and because 
 their situation gives them peculiar fitness and ability for perform- 
 ing, with promptness and convenience, the duty of putting them in 
 proper shape, and of afterwards keeping them in a condition suit- 
 able for use. . . . The courts distinguish this from 
 taxation, on the ground that the peculiar interest which those upon 
 whom the duty is imposed have in its performance," etc. Again, on 
 page 588, he says: "The distinction between a demand for money 
 under the police power and one under the power to tax, is not so 
 much one of form as of substance. The proceedings may be the 
 same in the two cases, though the purpose is essentially different. 
 The one is made for regulation, the other for revenue. If, there- 
 fore, the purpose is evident, there can be no difficulty in classify- 
 ing the case and referring it to its proper power." The same dis- 
 tinction was recognized in re Goddard, 16. Pick. 504, 509. 
 
 The ordinance of May 3, 1855, passed in pursuance of the 
 authority vested in councils by the act of April 16, 1838, and Feb- 
 ruary 2, 1854, provides that the footways of all public streets and 
 highways . . . shall be graded, curbed, and paved, 
 and kept in repair at the expense of the owners of the ground 
 fronting thereon." The third section of same ordinance provides 
 that the owner shall have the right to do the work of paving and 
 curbing and keeping in repair said footways, and, on his failure 
 to do so, the city shall do it at its expense, and may file a lien for 
 the amount. This requirement is clearly not for the purpose of 
 revenue. It is simply a regulation under the police power of the 
 municipality. On principle, as well as on the authority of our own 
 and other cases, the amount expended by the city in enforcing the 
 regulation is not in any proper sense of the word a tax. It is a 
 liability incurred for neglect to perform a duty imposed by the 
 police power of the city. In so holding, we adhere to the principle 
 ruled in Wilkinsburg Borough v. Home for Aged Women, supra- 
 
 Judgment affirmed.
 
 592 TAXATION BY SPECIAL ASSESSMENTS. 
 
 McCHESNEY ET AL. V. VILLAGE OF HYDE PARK. 
 
 Supreme Court of Illinois. October, 1894. 
 151 Illinois, 634- 
 
 Mr. Justice BAKER delivered the opinion of the court: 
 
 On March 27, 1888, a petition was filed by the village of Hyde 
 Park in the County Court of Cook County, in a special assessment 
 proceeding. The assessment was based upon an ordinance of the 
 Village of Hyde Park, passed on November 7, 1887, for the cost of 
 constructing a certain sewer, and erecting pumping works for drain- 
 age purposes. After the coming in of the assessment roll, A. B. 
 McChesney et al. filed objections to the confirmation of the assess- 
 ments as to their respective lands. Upon a hearing, A. B. McChesney 
 et al. failed to sustain their objections, and a judgment of confirma- 
 tion was entered. Thereupon said A. B. McChesney et al. appealed 
 to this court, and filed here a transcript of the record. 
 
 On July 13, 1889, another petition was filed by said village in 
 said county court, in another assessment proceeding. The assess- 
 ment in said latter proceeding was based on another and different 
 ordinance, an ordinance passed by the village on May 24, 1889, for 
 an assessment to be made for the maintenance and operation of the 
 aforesaid pumping works and drainage system. Upon the filing of 
 the assessment roll in this latter proceeding, said A. B. McChesney 
 et al. filed objections to the confirmation of the assessment as to 
 their respective lands. They also failed to sustain their objections 
 in this latter proceeding, and the court rendered a judgment of con- 
 firmation. A. B. McChesney et al. then took an appeal from this 
 latter judgment, and a transcript of the record in this latter pro- 
 ceeding was thereupon filed in this court. 
 
 A third transcript of record was also filed in this court, containing 
 a bill of exceptions, from which it appears that, by agreement and 
 stipulation of parties, the two cases mentioned above were tried 
 together, and further appears that by agreement of parties the excep- 
 tions taken in both cases might be shown in both cases in one bill 
 of exceptions, as the cases were tried together by consent. 
 
 The two cases were submitted to this court as one case; and an 
 opinion filed which affirmed both judgments. Thereafter, upon peti- 
 tion of appellants, a rehearing was ordered. 
 
 In respect to the first case, which was predicated upon the ordinance 
 of November 7, 1887, we re-adopt and adhere to what was said in 
 the opinion filed prior to the rehearing.
 
 McCHESNEY V. VILLAGE OF HYDE PARK. 593 
 
 In the second case, in which the village of Hyde Park filed its peti- 
 tion in the County Court on July 13, 1889, the proceedings were 
 based upon an ordinance passed on May 24, 1889. That ordinance 
 provides, that an assessment be made for the maintenance and opera- 
 tion of the drainage system and pumping works of the district, etc. ; 
 that the expense and cost of said maintenance and operation shall 
 be defrayed wholly by a special assessment to be made in accordance 
 with sections 18 to 51 inclusive of article 9 of the act to provide for 
 the incorporation of cities and villages; and that certain per- 
 sons designated therein be and are "appointed commissioners to make 
 an estimate of the cost of the said maintenance and operation contem- 
 plated by this ordinance, including labor, materials and all other 
 expenses attending the same," etc. . . . 
 
 Under this state of facts the question is raised whether a city 
 or village can pass a lawful or valid ordinance for a special assess- 
 ment for the operation of or for defraying the running expenses of a 
 drainage system, and pumping works connected therewith, after they 
 have been constructed ? 
 
 It is admitted, and manifest even if not admitted, that the only 
 authority or power which the village of Hyde Park could claim for 
 passing the ordinance of May 24, 1889, is through the act of the 
 general assembly, approved June 22, 1885, and found in the laws of 
 1885, on page 60. And, to go back one step further, and to the 
 source of power, the only authority the general assembly had to enact 
 said act of 1885 is found in amended section 31, of article 4, of the 
 constitution of the state, adopted by the people at an election held 
 November 5, 1878. 
 
 . . . We do not think that the legislature intended by the act 
 of June 22, 1885, to give to the corporate authorities of cities and 
 villages any powers other than those it was authorized to vest in 
 such corporate authorities. 
 
 The cost of construction and of maintaining or keeping in repair 
 are the only costs that can be levied upon the property benefited by 
 special assessment. The word "operate" does not mean the same 
 thing as either the word "construct," the word "maintain," or the 
 expression "keep in repair," and is not included in the significations 
 of either. Webster defines the word "operate" as meaning "to put 
 into, or to continue in operation or activity," "to work, or to operate 
 a machine." The correct solution is, that the cost of operating, when 
 completed, or paying the running expenses when the ditch, pumping 
 38
 
 594 TAXATION BY SPECIAL ASSESSMENTS. 
 
 works and machinery are in activity, devolved upon the village of 
 Hyde Park as a part of its general and corporate current expenses 
 as an incorporated village; the drainage district, as a district, heing 
 in the meanwhile liable to pay all expenses that come within the 
 category of maintenance or keeping in repair, as herein denned. 
 
 The operating expenses being a legitimate current expense of the 
 municipality of the village, and an indebtedness incurred for cor- 
 porate purposes, must be paid by it, or since its annexation to the city 
 of Chicago,. by said city. . . . 
 
 Our conclusion is that the ordinance of May 24, 1889, is invalid, 
 both because it is not authorized by amended section 31 of article 4 
 of the constitution, and because, even if it was not unconstitutional, 
 no power to pass it was given by the act of the general assembly, 
 approved June 22, 1885 ; and that consequently all proceedings under 
 it were unauthorized and void. 
 
 It follows from what we have said . . . that the judgment of 
 said court confirming the assessment made upon appellant's property 
 in the second proceeding, which was based upon the ordinance of 
 May 24, 1889, is reversed. . . . 
 
 WILKIN, C. J., dissenting. I do not think pumping works in 
 connection with a drainage system under the act of June, 1885, can be 
 operated by general taxation. 
 
 McCHESNEY V. CITY OF CHICAGO. 
 
 Supreme Court of Illinois. February, 1898. 
 Ill Illinois, 253. 
 
 Mr. Justice WILKIN delivered the opinion of the court : 
 The city of Chicago filed its petition in the county court of Cook 
 county for the levy and confirmation of a specific assessment, under 
 article 9 of the City and Village Act, for the laying of a cement 
 sidewalk on Rhodes avenue. A roll was duly made and returned. 
 At the time set for hearing the appellant appeared and filed certain 
 objections, all of which, save one, were overruled at the hearing. An 
 objection to the effect that the assessment was greater than the 
 benefits was sustained, and the assessment roll modified and confirmed. 
 One of the objections overruled, was that the ordinance authorizing 
 the improvement did not specify the nature, character, locality and
 
 MERRITT V. CITY OF KEWANEE. 595 
 
 description of the proposed improvement, and this is assigned for 
 error. . . . This objection should have been sustained. 
 
 Another objection is, that the improvement was unnecessary. It 
 is claimed that the appellant had a plank sidewalk in front of his 
 lots, which was up to grade and in good repair. The question of the 
 necessity of a local improvement is committed by the law to the city 
 council, and the courts have no right to interfere, except in a case 
 where it clearly appears that such discretion has been abused. The 
 ground on which the courts interfere is, that the ordinance is so 
 unreasonable as to render it void. Under the proofs that was not the 
 case here. 
 
 For the error in not sustaining the objection with reference to the 
 uncertainty of the location of the improvement the judgment of 
 the county court must be reversed. 
 
 Judgment reversed. 
 
 IV. REGULARITY OF PROCEEDINGS. 
 MERRITT ET AL. V. CITY OF KEWANEE. 
 
 Supreme Court of Illinois. October, 1898. 
 175 Illinois, 587. 
 
 Mr. Justice MAGRUDER delivered the opinion of the court: 
 The present proceeding is brought under the act of June 14, 1897, 
 "concerning local improvements." 
 
 Section 7 provides, that all ordinances for local improvements to be 
 paid for wholly or in part by special assessment or special taxation 
 shall originate with the board of local improvements. 
 
 Section 9 provides that with any such ordinance, presented by such 
 board to the city council, there shall also be presented a recommen- 
 dation of such improvement by the said board, signed by at least a 
 majority of the members thereof. 
 
 One of the objections, made by the appellants in the court below, 
 was that the ordinance No. 10 was invalid upon the alleged ground 
 that the owners of a majority of the contiguous property did not 
 petition for said improvement, and that no petition signed by the 
 owners of a majority of said property was ever presented to the board
 
 596 TAXATION BY SPECIAL ASSESSMENTS. 
 
 of local improvements before the passage of said ordinance; and that 
 no local ordinance was passed or adopted by the city council of the 
 city of Kewanee authorizing said assessment. 
 
 By the terms of section 9, the recommendation made by the board 
 of local improvements is made prima facie evidence, that all the 
 preliminary requirements of the law have been complied with. Hence, 
 in the present case, when the petition and the recommendation and 
 the ordinance were introduced in evidence, the city made a prima 
 facie case, and the burden of proof was upon the objectors to show, 
 if such was the fact, that the petition had not been signed as required 
 by the act. Section 9 says that, "if a variance be shown on the 
 proceedings in court, it shall not affect the validity of the proceedings 
 unless the court shall deem the same wilful or substantial." It is 
 difficult to understand just what is meant here by the word, "wilful." 
 It seems impossible to believe, that the men, who signed their own 
 names as owners to this petition, did not know that they themselves 
 were not the owners, but that their wives were the owners of the 
 property for which they signed. Their act in so signing would seem 
 to have been, in a certain sense, wilful, if not fraudulent. But, 
 whether this is so or not, we think the proof here made shows that 
 there was a "substantial" variance between the requirements of the 
 law and the mode of signing the petition. Where the law requires 
 that owners shall sign the petition, and parties who are not owners 
 sign the petition, there certainly is a substantial variance between the 
 law and the act done. It sufficiently appears from the testimony of 
 these signers themselves, that their wives were the owners of the 
 property ; and, while some of the proof introduced 'to establish owner- 
 ship may not have been competent for that purpose, there was other 
 proof that was competent. The word, "owner," as here used in the 
 statute, means owner in fee. (Illinois Mutual Ins. Co. v. Marseilles 
 Manf. Co., 1 Gilm. 236 ; Wright v. Bennett, 3 Scam. 258 ; Whiteside v. 
 Divers, 4 id. 336; Jarrot v. Vaughn, 2 Gilm. 132.) Although the 
 ordinance was prima facie valid in view of the recommendation made 
 by the board of improvements, yet, when the proof showed that the 
 petition had not been signed by the owners of a majority of the 
 abutting property, the void character of the ordinance was established. 
 It is well said that an act, which is void at the time it is done, cannot 
 be ratified. Even the legislature cannot impart life to a void pro- 
 ceeding. Mechem on Agency, sec. 114; Day v. McAllister, 15 Gray, 
 433 ; 1 Am. & Eng. Ency. of Law, p. 430 ; McDaniel v. Correll, 19 111. 
 226; Miller v. City of Amsterdam, supra; Marshall v. Silliman, 61
 
 WHITEFORD TOWNSHIP V. PROBATE JUDGE. 597 
 
 111. 218. Unless ai valid ordinance is shown there is nothing upon 
 which the subsequent assessment proceeding can rest. Such a valid 
 ordinance is the foundation of an improvement by special assessment 
 or special taxation, and cannot be dispensed with. (City of Carlyle v. 
 County of Clinton, 140 111. 512; Lindsay v. City of Chicago, 115 
 id. 120; City of East St. Louis v. Albrecht, 150 id. 510.) In pro- 
 ceedings for the collection of taxes or special assessments or special 
 taxes, the requirements of the statute must be strictly followed. 
 (McChesney v. People, 148 111. 221; City of Alton v. Middleton's 
 Heirs, 158 id. 442.) 
 
 We are of the opinion that the county court erred in not sustain- 
 ing the objection that the petition for the improvement in this case 
 was not signed by the owners of a majority of the property in any 
 one or more contiguous blocks abutting on the street proposed to be 
 paved. 
 
 For the error in refusing to sustain the objection the judgment of 
 confirmation entered by the county court is reversed, and the cause 
 is remanded to that court for further proceedings in accordance with 
 the views herein expressed. 
 
 Reversed and remanded. 
 
 WHITEFORD TOWNSHIP V. PROBATE JUDGE. 
 
 Supreme Court of Michigan. January, 188 '4. 
 53 Michigan, 130. 
 
 SHERWOOD, J. The certiorari in this case brings before us 
 proceedings had before the judge of probate for the county of Mon- 
 roe, appointing a special drain commissioner to construct a certain 
 ditch, and widen, deepen and straighten natural water channels as 
 parts thereof, for the purpose of draining Ottawa lake and certain 
 lands lying along said ditch or drain said drain being partly in 
 Monroe and partly in Lenawee county. 
 
 The petition upon which the writ in this case was allowed, 
 states that said Robertson, who was a resident of the county of 
 Lenawee. presented the petition to tho judge of probate of Monroe 
 county for the appointment of himself as such special commissioner, 
 and that no notice was given to any one by said Robertson, or the 
 judge of probate, of the pending of the petition, or of the time
 
 598 TAXATION BY SPECIAL ASSESSMENTS. 
 
 and place when a hearing would be had upon the same, and that 
 without any proof or verification of the petition the judge pro- 
 ceeded ex parte and made the order appointing said Robertson such 
 special drain commissioner; and that no notice whatever of any pro- 
 ceedings in the matter was given to parties interested, or any other 
 order made in the premises; and that all the persons owning land 
 through which it was proposed to construct said drain had not re- 
 leased the right of way nor their damages therefor, and that among 
 them were several minors; that the said Robertson has pretended to 
 act under the said appointment, and filed a report of his doings with 
 the county clerk, by which it appears he has ascertained and deter- 
 mined the cost of said drain, established by him as above stated, 
 to be $32,361.05 and that the petitioners had been assessed that 
 amount ; that said drain, as laid and established, is for the most part 
 if not entirely, on the line of existing drains already established by 
 the township and county drain commissioners. . . . 
 
 The petitioners in the writ make the following objections to the 
 proceedings of the judge of probate and said special drain commis- 
 sioner, viz.: First, because no notice was given to the parties inter- 
 ested of the time and place of hearing of said application for the 
 appointment of said Robertson. 
 
 Second, because there was no evidence before said court that the 
 applicants were freeholders of said counties of Monroe and Lenawee, 
 nor was said application verified by the oath of any person. 
 
 Third, that the said order of said court did not require said Robert- 
 son, in any manner, to qualify as such officer, nor did said Robertson 
 accept such appointment and qualify as such officer, as required by 
 law. 
 
 Fourth, because, without having filed any oath or bond, as required 
 by law, and without giving, any notice of his contemplated action 
 to determine the necessity and practicability of the proposed drain, 
 he proceeded to act as such commissioner, and to attempt to estab- 
 lish said drain. 
 
 Fifth, because all persons owning lands on the line of said pro- 
 posed drain have not released the right of way over their said lands, 
 nor their claims for damage on account thereof. 
 
 Sixth, because 1 the said Robertson, as special drain commissioner, 
 acting under said pretended appointment, has not determined that 
 the proposed drain was necessary and practicable. Nor have any 
 special commissioners been appointed and acted to ascertain the neces- 
 sity of such drain, and the taking of private property for the pur- 
 pose thereof, and the just compensation therefor.
 
 WHITEFOHD TOWNSHIP V. PROBATE JUDGE 599 
 
 We think these objections were all well taken. The proceeding^ 
 are all statutory, not according to the course of the common law, 
 and must strictly conform to the statutes authorizing them. Every 
 material requirement of the statute must be observed, and the pro- 
 ceedings must show affirmatively on their face a substantial compli- 
 ance with the law. . . . 
 
 The application of the judge of probate does not show that the 
 persons who signed the petition presented were resident freeholders of 
 either Lenawee or Monroe counties, and was therefore insufficient; that 
 fact should appear on the face of the petition. This it is which is 
 to put the officer in motion, and it is the "basis of his authority to 
 enter upon the course of proceedings to establish a water course or 
 locate a ditch. 
 
 No notice was given to the parties interested of the pendency of 
 the application or proceedings before the judge of probate, or of the 
 time and place when the same would be heard. Such a notice is 
 always necessary when it is sought to deprive the citizen of his prop- 
 erty; and if the notice is not expressly provided for in the law itself, 
 it is in all such cases necessarily implied, and the failure to give such 
 notice rendered the proceedings, if otherwise regular, null and void. 
 
 The record shows no proper adjudication or determination by any 
 person of the necessity to make the ditch or drain proposed or whether 
 the same was practicable. This is one of the first things to be con- 
 sidered and ascertained in the proceedings to be taken, and without 
 a compliance with this requirement no further proceedings can be 
 taken legally. 
 
 It is unnecessary to consider the proceedings further. They are 
 clearly without the authority of law, and cannot be sustained. 
 
 We have said more than was necessary to dispose of the questions 
 involved in this case, but we have done so with a view that a better 
 understanding may be had, both of the statute and the decision of 
 this Court already made thereunder. 
 
 The proceedings in the case must be quashed, and the petitioners 
 will recover their costs against the respondents.
 
 GOO TAXATION BY SPECIAL ASSESSMENTS. 
 
 PARTRIDGE V. LUCAS. 
 
 Supreme Court of California. September, 1893. 
 99 California, 519. 
 
 DE HAVEN, J. This is an action to recover upon a street assess- 
 ment. In the superior court a demurrer to the complaint was sus- 
 tained, and judgment thereupon rendered for defendant. Plaintiffs 
 appeal. 
 
 1. It is well settled that "the passage and publication of the reso- 
 lution of intention are acts by which the board acquires jurisdiction ; 
 and by those acts they acquire jurisdiction to make only such improve- 
 ments as they described in the resolution, and they cannot, therefore, 
 lawfully cause work other than that which is described to be per- 
 formed.'' (Beaudry v. Valdez, 32 Cal. 276 ; Himmelman v. Satterlee, 
 50 Cal. 68.) The complaint alleges that the board of trustees of the 
 town of San Rafael passed a resolution declaring it to be the inten- 
 tion of such board to order "that B Street ... be macadam- 
 ized'' ; and thereafter, assuming to act under such resolution of inten- 
 tion, awarded to plaintiffs a contract to macadamize the street men- 
 tioned, and also to construct therein rock gutterways, "formed by 
 laying flat stones even on their upper surfaces . . . and not 
 more than nine inches square . . . the stone to be hand laid 
 . . . and securely spawled where openings between the joists 
 occur," the interstices to be filled "with clean, hard rock, finely broken 
 and screened." 
 
 It is plain that the work described in the resolution of inten- 
 tion did not include the construction of rock gutterways in the street 
 to be macadamized, and therefore the board of trustees did not, under 
 the rule above stated, acquire jurisdiction to contract for such gutter- 
 ways, and the contract as to these is void. The word "macadamize" 
 has a fixed and definite meaning and refers, not only to the kind of 
 material to be used in covering a street or road, but also to the man- 
 ner is which it is to be laid. It means to cover a street or road "by 
 the process introduced by Macadam, which consists of small stones 
 of a uniform size, consolidated and leveled by heavy rollers." (13 
 Am. & Eng. Enc. of Law, p. 1194.) The construction of rock gut- 
 terways in the manner described in the contract awarded to plain- 
 tiffs is something entirely different from the ordinary work of 
 macadamizing the surface of a street as thus defined; and, unless 
 expressly named and called for in a contract, the contractor under-
 
 PARTRIDGE V. LUCAS. 601 
 
 taking simply to macadamize a street would not be required to con- 
 struct such gutterways in order to complete his contract; and, 
 although it may be true that in many instances such gutterways 
 would be of great benefit to streets paved with macadam, still this 
 fact would not render their construction in such streets any the 
 less a distinct improvement, and one not to be deemed as included in 
 a resolution of intention or a contract to macadamize a street unless 
 particularly named in such resolution or contract. A resolution ol 
 intention to macadamize a street gives no notice of an intention to 
 construct gutterways therein of any different material than macadam, 
 or to be laid in any different manner, or at a greater cost per foot than 
 the other portions of the street between the curbing. 
 
 The case of McNamara v. Estes, 22 Iowa, 246, also cited by plain- 
 tiff, is more nearly in point, and yet does not decide the exact question 
 we are now considering. In that case it was decided that under a 
 general power to macadamize streets, a town might also construct 
 gutterways,. and we presume although it is not so stated, rock gutter- 
 ways. The court in effect there held that the power to construct such 
 gutterways was fairly embraced in the general power to macadamize, 
 and was incident thereto. The question before us, however, arises 
 under a statute which, while it confers power upon cities and towns 
 to macadamize streets and construct rock gutterways therein, also 
 requires the passage and publication of a resolution of intention 
 describing the work intended to be done, as a condition precedent 
 to the right to enter into a contract therefor. The object of this 
 statute is to give notice to owners of property who would be affected 
 by the contemplated improvement, in order that they may be heard 
 in opposition thereto if they desire (Emery v. San Francisco Gas Co. 
 28 Cal. 375) ; and, while it is not necessary that the resolution of 
 intention should be as full and minute as specifications contained in 
 a contract, still such resolution must contain a general description 
 of all that is intended to be done; and as rock gutterways are not 
 necessarily any part of the work of macadamizing a street, and are 
 capable' of being easily described as a separate and distinct part of 
 the improvement of a street when their construction is deemed neces- 
 sary or proper in connection with the macadamization of a street, they 
 must be mentioned in the resolution of intention in order to justify 
 a contract for their construction. The rule which requires the board 
 of trustees or city council to keep strictly within the resolution of 
 intention is not a harsh -one, and a contractor ought certainly have 
 no difficulty in determining whether the work specified in his contract
 
 602 TAXATION BY SPECIAL ASSESSMENTS. 
 
 falls within the general description of that named in the resolution 
 of intention, and which resolution under the statute is the first and 
 necessary step to be taken hy the town or city in obtaining jurisdiction 
 to let any contract for the improvement of a street to be paid for 
 by an assessment upon abutting property. 
 
 FITZGERALD, J., and MCFARLAND, J., concurred.
 
 CHAPTER XV. 
 ENFORCING OFFICIAL DUTY. 
 
 Cases in this collection illustrative of the use of the mandamus to 
 enforce official duty are : People v. Campbell, 93 N. Y. 196, to cancel 
 record of taxes on land claimed to be exempt from taxation ; People v. 
 Salomon, 46 111. 333, to force obedience to orders of board of 
 equalization; People v. Supervisors, 51 N. Y. 401, the audit of a 
 claim for repayment of taxes illegally demanded; State v. New 
 Orleans, 37 La. Ann. 16, the levy of a tax to pay a claim; State v. 
 Township Committee, 7 Vroom. (N. J. L.) 66, the issue of bonds by 
 a local corporation; State v. Williston, 20 Wis. 240, delivery of tax 
 deed. See also Rees v. Watertown, 19 Wallace (U. S.), 107. 
 
 60S
 
 CHAFER XVI. 
 
 THE REMEDIES FOR WRONGFUL ACTION IN TAX 
 PROCEEDINGS. 
 
 I. REFUNDING TAXES. 
 GARY V. CURTIS. 
 
 Supreme Court of the United States. January, 1845. 
 3 Howard, 236. 
 
 This case came up from the Circuit Court of the United States 
 for the southern district of New York, on a certificate of division 
 between the judges thereof. 
 
 The action was brought in the Circuit Court to recover money paid 
 to Curtis, as collector of the port of New York, for duties 
 
 Mr. Justice DANIEL delivered the opinion of the court. 
 
 In order to arrive at the answer which should be given to the ques- 
 tion certified upon this record, the objects first to be sought for are 
 the intention and meaning of Congress in the enactment of the 3d 
 section of the act of March 3d, 1839, under which the question sent 
 here has been raised. The positive language of the statute, it is true, 
 must control every other rule of interpretation, yet even this may be 
 understood by recurrence to the known public practice as to matters 
 pan materia, and by the rules of law as previously expounded by 
 the courts, and as applied to and as having influenced that practice. 
 The law as laid down by this court with respect to collectors of the 
 revenue, in the case of Elliott v. Swartwout, 10 Peters 137, and 
 again incidentally in the case of Bend v. Hoyt, 13 Peters, 263, 
 is precisely that which is applicable to agents in private transactions 
 between man and man, viz. : that a voluntary payment to an agent 
 without notice of objection will not subject the agent who shall have 
 paid over to his principal; but that payment with notice, or with a 
 protest against the legality of the demand, may create a liability on 
 the part of the agent who shall pay over to his principal in spite of 
 such notice or protest. Such was the law as announced from this 
 court, and Congress must be presumed to have been cognizant of 
 its existence; and as the peculiar power ordained by the Constitution 
 
 604
 
 GARY V. CURTIS. 605 
 
 to prescribe rules of right and of action for all officers as well as 
 others falling within the legitimate scope of federal legislation, they 
 must be supposed to have been equally cognizant of the effects, and 
 tendencies of this court's decisions upon the collection of the public 
 revenue. With this knowledge necessarily presumed for them, Con- 
 gress enact the 2d section of the act of 1839. 
 
 And now let us look at the language of the act of 1839, c. 82, 2. 
 "That from and after the passage of this act, all money paid to any 
 collector of the customs, or to any person acting as such, for unas- 
 certained duties, or for duties paid under protest against the rate or 
 amount of duties charged, shall be placed to the credit of the treas- 
 urer of the United States, kept and disposed of as all other money 
 paid for duties is required by law, or by regulation of the Treasury 
 Department, to be placed to the credit of the treasurer, kept and 
 disposed of; and it shall not be held by said collector or person act- 
 ing as such, to await any ascertainment of duties, or the result of 
 any litigation in relation to the rate or amount of duty legally 
 chargeable and collectable in any case where money is so paid; but 
 whenever it shall be shown to the satisfaction of the secretary of 
 the Treasury, that in any case of unascertained duties, or duties paid 
 under protest, more money has been paid to the collector or to the 
 person acting as such, than the law requires should have been paid, 
 it shall be his duty to draw his warrant on the treasurer in favor of 
 the person or persons entitled to the over-payment, directing the 
 said treasurer to refund the same out of any money in the Treasury 
 not otherwise appropriated." 
 
 What is the plain and obvious import of this provision, taking it 
 independently and as a whole ? It is that all moneys thereafter paid 
 to any collector for unascertained duties, or duties paid under pro- 
 test, (i. e. with notice of objection by the payer) shall, notwithstanding 
 such notice, be placed to the credit of the treasurer, kept and dis- 
 posed of as all other money paid for duties is required by law to be 
 kept and disposed of; that is, they shall be paid over by the collector, 
 received by the treasurer, and disbursed by him in conformity with 
 appropriations by law, precisely as if no notice or protest had been 
 given or made; and shall not be retained by the collector (and conse- 
 quently not withdrawn from the uses of the government) to await 
 any ascertainment of duties, or the result of any litigation relative to 
 the rate or amount of duties, in any case in which money is so paid. 
 
 This section of the act of Congress, considered independently and 
 as apart from the facts and circumstances which are known to have
 
 606 REMEDIES FOR WRONGFUL ACTION. 
 
 / 
 
 preceded it, and may fairly be supposed to have induced its enact- 
 ment, must be understood as leaving with the collector no lien upon, 
 or discretion over, the sums received by him on account of the duties 
 described therein; but as converting him into the mere bearer of 
 those sums to the Treasury of the United States, through the presiding 
 officer of which department they were to be disposed of in conformity 
 with the law. Looking then to the immediate operation of this 
 section upon the conclusions either directly announced or as implied 
 in the decision of Elliott v. Swartwout, how are those conclusions 
 affected by it? They must be influenced by consequences like the 
 following: That whereas by the decision above mentioned it is 
 assumed that by notice to the collector, or by protest against payment, 
 a personal liability for the duties actually paid, attaches upon, and 
 that for his protection a correspondent right of retainer is created 
 on his part; it is thereby made known (i. e. by the statute) that under 
 no circumstances in future should the revenue be retained in the 
 hands of the collector; that he should in no instance be regarded by 
 those making payments to him as having a lien upon it, because he 
 is announced to be the mere instrument or vehicle to convey the 
 duties paid into his hands into the Treasury; that it is the secre- 
 tary of the Treasury alone in whom the rights of the government 
 and of the claimant are to be tested ; and that whoever shall pay to a 
 collector any money for duties, must do so subject to the consequences 
 herein declared. Such, from the 3d day of March, 1839, was the 
 public law of the United States; it operated as notice to every one; 
 it applied of course to every citizen as well as to officers concerned 
 in the regulation of the revenue; and as it removed the implications 
 on which the decision in Elliott v. Swartwout materially rested, that 
 case cannot correctly control a question arising under a different 
 state of the law, and under a condition of the parties also essentially 
 different. 
 
 It is contended, however, that tho language and the purposes of Con- 
 gress, if really what we hold them to be declared in the statute of 1839, 
 cannot be sustained, because they would be repugnant to the Consti- 
 tution, inasmuch as they would debar the citizen of his right to 
 resort? to the courts of justice. The supremacy of the Constitution 
 over all officers and authorities, both of the federal and state gov- 
 ernments, and the sanctity of the rights guaranteed by it, none will 
 question. These are concessa on all sides. The objection above 
 referred to admits of the most satisfactory refutation. This may 
 be found in the following position, familiar in this and most other
 
 GARY V. CURTIS. 607 
 
 governments, viz. : that the government, as a general rule, claims 
 an exemption from being sued in its own courts. That although, as 
 being charged with the administration of the laws, it will resort to 
 those courts as a means of securing this great end, it will not permit 
 itself to be impleaded therein, save in instances forming conceded and 
 express exceptions. Secondly, in the doctrine so often ruled in this 
 court, that the judicial power of the United States, although it has its 
 origin in the Constitution, is (except in enumerated instances, applica- 
 ble exclusively to this court) dependent for its distribution and organ- 
 ization, and for the modes of its exercise, entirely upon the action of 
 Congress, who possess the sole power of creating the tribunals (inferior 
 to the Supreme Court) for the exercise of the judicial power, and 
 with investing them with jurisdiction either limited, concurrent or 
 exclusive, and of withholding jurisdiction from them in the exact 
 degrees and character which to Congress may seem proper to the 
 public good. To deny this position would be to elevate the judicial 
 over the legislative branch of the government, and to give to the 
 former powers limited by its own discretion merely. It follows, 
 then, that the courts created by statute must look to the statute as 
 the warrant for their authority; certainly they cannot go beyond the 
 statute and assert an authority with which they may not be in- 
 vested by it, or which may be clearly denied to them. This argu- 
 ment is in no wise impaired by admitting that the judicial power 
 shall extend to all cases arising under the Constitution and laws of 
 the United States. Perfectly consistent with such an admission is 
 the truth, that the organization of the judicial power, the definition 
 and distribution of the subjects of jurisdiction in the federal trib- 
 unals, and the modes of their action and authority, have been, and 
 of right must be, the work of the legislature. The existence of the 
 Judicial Act itself, with its several supplements, furnishes proof un- 
 answerable on this point. The courts of the United States are all 
 limited in their nature and constitution, and have not the powers 
 inherent in courts existing by prescription or by the common law. 
 In devising a system for imposing and collecting the public 
 revenue, it was competent for Congress to designate the officer of the 
 government in whom the rights of that government should be repre- 
 sented in any conflict which might arise, and to prescribe the manner 
 of trial. It is not imagined that by so doing, Congress is justly charge- 
 able with usurpation, or that the citizen is thereby deprived of his 
 rights. There is nothing arbitrary in such arrangements; they are 
 general in their character; are the result of principles inherent in 
 the government; are defined and promulgated as the public law.
 
 608 REMEDIES FOR WRONGFUL ACTION. 
 
 A more striking example of the powers exerted by the government, in 
 relation to its fiscal concerns, than is seen in the act of 1839, is the 
 power of distress, and sale, authorized by the act of Congress of May 
 15, 1820, (3 Story, 1791) upon adjustments of accounts by the first 
 comptroller of the Treasury. This very strong and summary pro- 
 ceeding has now been in practice for nearly a quarter of a century, 
 without its regularity having been questioned, so far as is known to 
 the court. The courts of the United States can take cognizance only 
 of subjects assigned to them expressly or by necessary implication; 
 a fortiori, they can take no cognizance of matters that by law are 
 either denied to them or expressly referred ad aliud examen. 
 
 But whilst it has been deemed proper, in examining the question 
 referred to by the Circuit Court, to clear it of embarrassments with 
 which, from its supposed connection with the Constitution, it is 
 thought to be environed, this court feel satisfied that such embarrass- 
 ments exist in imagination only and not in reality; that the case and 
 the question now before them present no interference with the Con- 
 stitution in any one of its provisions, and may be, and should be dis- 
 posed of on the plainest principles of common right. 
 
 We have thus stated, and will here recapitulate, the principles 
 upon which the action for money had and received may be main- 
 tained. They are these: 1st. Whenever the defendant has received 
 money which is the property of the plaintiff, and which the defendant 
 is obliged, by the ties of natural justice and equity, to refund. 2dly. 
 In the case of an agent, where such agent is not notoriously the mere 
 carrier or instrument for transferring the fund, but has the power of 
 retaining, and before he has paid over has received notice of the 
 plaintiff's claim, and a warning not to part with the fund. 3dly. 
 Where there exists a privity between the plaintiff and the defendant. 
 Let the case before us be brought to the test of these rules. The 
 2d section of the act of Congress declares, first, that from its passage, 
 all money paid to any collector of the customs for unascertained 
 duties, or duties paid under protest against the rate or amount of the 
 duties charged, shall be placed to the credit of the treasurer, to be 
 kept and applied as all other money paid for duties required by law. 
 Secondly,' that they shall not be held by the collector to await any 
 ascertainment of duties, or the result of any litigation, concerning the 
 rate or amount of duty legally chargeable or collectable. And thirdly, 
 that in all cases of dispute as to the rate of duties, application shall 
 be made to the secretary of the Treasury, who shall direct the repay- 
 ment of any money improperly charged. This section, as a part of the
 
 GARY V. CURTIS. 609 
 
 public law, must be taken as notice to all revenue officers, and to 
 all importers and others dealing with those officers in the line of their 
 duty. There is nothing obscure or equivocal in this law. It declares 
 to every one subject to the payment of duties, the disposition which 
 shall be made of all payments in future to collectors ; tells them those 
 officers shall have no discretion over money received by them, and 
 especially that they shall never retain it to await the result of any 
 contest concerning the right to it; and that quoad this money the 
 statute has converted those officers into mere instruments for its 
 transfer to the Treasury. With full knowledge thus imparted by the 
 law, can it be correctly understood that the party making payment 
 can, ex equo et bono, recover against the officer for acting in literal 
 conformity with the law, converting thereby the performance of his 
 duty into an offence; or that upon principles of equity and good con- 
 science, an obligation and a promise to refund shall be implied against 
 the express mandate of the law? Such a presumption appears to us 
 to be subversive of every rule of right. The more correct inference 
 seems to be, that payment under such circumstances must, ex equo et 
 bono, nay, ex necessitate, and in spite of objection made at the time, 
 be taken as made in conformity with the mandate of the law and the 
 duty of the officer, which exclude not only any implied promise of 
 repayment by the officer, but would render void an express promise 
 by him, founded upon violation of both the law and his duty. The 
 claimant had his option to refuse payment, the retention of the goods 
 for the adjustment of duties, being an incident of probable occurrence, 
 to avoid this it could not be permitted to effect the abrogation of a 
 public law, or a system of public policy essentially connected with the 
 general action of the government. The claimant, moreover, was not 
 without other means of redress, had he chosen to adopt them. He 
 might have asserted his right to the possession of the goods, or his 
 exemption from the duties demanded, either by replevin or in an 
 action of detinue, or perhaps by an action of trover, upon his tender- 
 ing the amount of duties admitted by him to be legally due. The 
 legitimate inquiry before the court is not whether all right of action 
 had been taken away from the party, and the court responds to no 
 euch inquiry. The question presented for decision, and the only 
 question decided, is whether, under the notice given by the statute 
 of 1839, payments made in spite of that notice, though with a protest 
 against their supposed illegality, can constitute a ground for that 
 implied obligation to refund, and for that promise inferred by the 
 law from such obligation which are inseparable from, and indeed 
 are the only foundation of, a right of recovery in this particular 
 39
 
 610 REMEDIES FOR WRONGFUL ACTION. 
 
 form of action. And here is presented the answer to the assertion, 
 that by the act of 1839, or by the construction given to it by this 
 court, the party is debarred all access to the courts of justice, and 
 left entirely at the mercy of an executive officer. Neither have Con- 
 gress nor this court furnished the slightest ground for the above 
 assertion. 
 
 We deem it unnecessary to examine farther the grounds stated in 
 the second and third heads of inquiry, as forming the foundation of 
 the action for money had and received; or to bring to a particular 
 comparison with those grounds the law and the facts of this case, as 
 presented upon the record. The illustrations given under the first 
 head embrace all that is important under the remaining divisions, 
 with respect to the nature of the demand and the position of the 
 parties. Those illustrations establish, in the view of the court, that, 
 so far is the defendant from being obliged, by the ties of natural 
 equity and justice, to refund to the plaintiff the money received for 
 duties, that, on the contrary, under that notice of the law, which all 
 must be presumed to possess, the payment must be understood as 
 having been made with knowledge of the partiesi that the right of 
 retaining or of refunding the money did not exist in the defendant; 
 that the money by law must pass from him immediately upon its 
 receipt; that payment to him was in legal effect payment into the 
 Treasury; that notice to him was, under such circumstances, of no 
 effect to bind him to refund; that as the collector, since the stat- 
 ute, had power neither to retain nor refund, there could, as between 
 him and the plaintiff, arise no privity nor implication, on which to 
 found the promise raised by the law, only where an obligation to 
 undertake or promise exists; and that, therefore, the action for money 
 had and received could not, in this case, be maintained, but was barred 
 by the act of Congress of 1839. 
 
 Mr. Justice STORY. 
 
 I regret exceedingly being compelled by a sense of duty to express 
 openly my dissent from the opinion of a majority of the court in 
 this case.
 
 DE LIMA V. BIDWELL. 611 
 
 DE LIMA V. BIDWELL. 
 
 Supreme Court of the United States. October, 1900. 
 182 United States, 1. 
 
 This was an action originally instituted in the Supreme Court of 
 the State of Xe\v York by the firm of D. A. De Lima & Co. against 
 the collector of the port of Xew York, to recover back duties alleged to 
 have been illegally exacted and paid under protest, upon certain 
 importations of sugar from San Juan in the island of Porto Rico, 
 during the autumn of 1899, and subsequent to the cession of the 
 island to the United States. 
 
 Upon the petition of the collector, and pursuant to Rev. Stat. sec. 
 643, the case was removed by certiorari to the Circuit Court of the 
 United States, in which the defendant appeared and demurred to 
 the complaint upon the ground that it did not state a cause of action, 
 and also that the court had no jurisdiction of the case. The demur- 
 rer was sustained upon both grounds, and the action dismissed. Hence 
 this writ of error. 
 
 BROWN, J., delivered the opinion of the Court. 
 
 This case raises the single question whether territory acquired by 
 the United States by cession from a foreign power remains a "for- 
 eign country" within the meaning of the tariff laws. 
 
 1. . . . By Rev. Stat. sec. 2931, it was enacted that the deci- 
 sion of the collector "as to the rate and amount of duties" to be paid 
 upon imported merchandise should be final and conclusive, unless 
 the owner or agent entered a protest, and within thirty days appealed 
 therefrom to the Secretary of the Treasury; and, further, that the 
 decision of the Secretary should be final and conclusive, unless suit 
 were brought within ninety days after the decision of the Secretary. 
 By Rev. Stat. sec. 3011, any person having made payment under such 
 protest was given the right to bring an action at law and recover back 
 any excess of duties so paid. 
 
 The law stood in this condition until June 10, 1890, when an act 
 known as the Customs Administrative Act was passed, 26 Stat. 131, 
 c. 407, by which the above sections Rev. Stat. sees. 2931, 3011, were 
 repealed and new regulations established, by which an appeal was 
 given from the decision of the collector "'as to the rate and amount 
 of the duties chargeable upon imported merchandise," if such duties 
 were paid under protest, to a Board of General Appraisers, whose 
 decision should be final and conclusive (sec. 14) "as to the construe-
 
 612 REMEDIES FOR WRONGFUL ACTION. 
 
 tion of the law and the facts respecting the classification of such mer- 
 chandise and the rate "of duties imposed thereon under such classifi- 
 cation," unless within thirty days one of the parties applied to the 
 Circuit Court of the United States for a review of the questions of 
 law and fact involved in such decision. Sec. 15. It was further pro- 
 vided that the decision of such court should be final, unless the court 
 were of the opinion that the question involved was of such importance 
 as to require a review by this court, which was given power to affirm, 
 modify or reverse the decision of the Circuit Court. 
 
 The effect of the Customs Administrative Act was considered by 
 this court in In re Fassett, Petitioner, 142 U. S. 479, in which we 
 held that the decision of the collector that a yacht was an imported 
 article might be reviewed upon a libel for possession filed by the 
 owner, notwithstanding the Customs Administrative Act. It was held 
 that the review of the decision of the Board of General Appraisers, 
 provided for by section fifteen of that act, was limited to decisions 
 of the Board "as to the construction of the law and the facts respect- 
 ing the classification" of imported merchandise "and the rate of duties 
 imposed thereon under such classification," and that it did not bring 
 up for review the question whether an article be imported merchandise 
 or not, nor, under section fifteen, is the ascertainment of that fact 
 such a decision as is provided for. Said Mr. Justice Blatchford: 
 "Nor can the court of review pass upon any question which the col- 
 lector had not original authority to determine. The collector has no 
 authority to make any determination regarding any article which is 
 not imported merchandise; and if the vessel in question here is not 
 imported merchandise, the court of review would have no jurisdiction 
 to determine any matter regarding that question, and could not deter- 
 mine the very fact which is in issue under the libel in the District 
 Court, on which the rights of the libellant depend." 
 
 "Under the Customs Administrative Act, the libellant, in order 
 to have the benefit of the proceedings thereunder, must concede that 
 the vessel is imported merchandise, which is the very question put in 
 contention under the libel, and must make entry of her as imported 
 merchandi?e, with an invoice and consular certificate to that effect." 
 It was held that the libel was properly filed. 
 
 The question involved in this case is not whether the sugars were 
 importable articles under the tariff laws, but whether, coming as 
 they did from a port alleged to be domestic, they were imported from 
 a foreign country in other words, whether they were imported at all 
 as that word is defined in Woodruff v. Parham, 8 Wall. 123, 132. We 
 think the decision in the Fassett case is conclusive to the effect that,
 
 DE LIMA V. BIDWELL. 613 
 
 if the question be whether the sugars were, imported or not, such 
 question could not be raised before the Board of General Appraisers; 
 and that whether they were imported merchandise for the reasons 
 given in the Fassett case that a vessel is not an importable article, or 
 because the merchandise was not brought from a foreign country, is 
 immaterial. In either case the article is not imported. 
 
 Conceding then that section 3011 has been repealed, and that no 
 remedy exists under the Customs Administrative Act, does it follow 
 that no action whatever will lie ? If there be an admitted wrong, the 
 courts will look far to supply an adequate remedy. If an action lay 
 at common law the repeal of sections 2931 and 3011, regulating the 
 proceedings in customs cases, (that is, turning upon the classification 
 of merchandise,) to make way for another proceeding before the Board 
 of General Appraisers in the same class of cases, did not destroy any 
 right of action that might have existed as to other than customs cases ; 
 and the fact that by section 25 no collector shall be liable "for or on 
 account of any rulings or decisions as to the classification of such 
 merchandise or the duties charged thereon, or the collection of any 
 dues, charges or duties on or on account of any such merchandise," 
 or any other matter which the importer might have brought before the 
 Board of General Appraisers, does not restrict the right which the 
 owner of the merchandise might have against the collector in cases 
 not falling within the Customs Administrative Act. If the position 
 of the government be correct, the plaintiff would be remediless; 
 and if a collector should seize and hold for duties goods brought from 
 New Orleans, or any other concededly domestic port, to New York, 
 there would be no method of testing his right to make such seizure. 
 It is hardly possible that the owner could be placed in this position. 
 But we are not without authority on this point. 
 
 The case of Elliott v. Swartwout, 10 Pet. 137, 154, was an action 
 of assumpsit against the collector of the Port of New York to re- 
 cover certain duties upon goods alleged to have been improperly classi- 
 fied. It was held that as the payment was purely voluntary, by a 
 mutual mistake of law, no action would lie to recover them back, al- 
 though it would have been different if they had been paid under pro- 
 test. Said Mr. Justice Thompson : "Here, then, is the true decision : 
 when the money is paid voluntarily and by mistake to the agent, and 
 he has paid it over to his principal, he cannot be made personally re- 
 sponsible; but if, before paying it over, he is apprised of the mis- 
 take, and required not to pay it over, he is personally liable." If 
 the payment of the money be accompanied by a notice to the collector 
 that the duties charged are too high, and that the person paying in-
 
 614 REMEDIES FOR WRONGFUL ACTION. 
 
 tends to sue to recover back the amount erroneously paid, it was held 
 the such action must lie "unless the hroad proposition can be main- 
 tained, that no action will lie against a collector to recover back an 
 excess of duties paid him, but that recourse must be had to the Gov- 
 ernment for redress." The case recognized the fact that, with respect 
 to money paid under a mistake of law, the collector stood in the posi- 
 tion of an ordinary agent and could be made personally liable in case 
 the money were paid under protest. 
 
 This decision was made in 1836. Apparently in consequence of it 
 an act was passed in 1839 requiring moneys collected for duties to 
 be deposited to the credit of the Treasurer of the United States ; and 
 it was made the duty of the Secretary of the Treasury to draw his 
 warrant upon the Treasurer in case he found more money had been 
 paid to the collector than the law required. It was held by a majority 
 of this court in Gary v. Curtis, 3 How. 236, that this act precluded 
 an action of assumpsit for money had and received against the col- 
 lector for duties received by him, and that the act of 1839 furnished 
 the sole remedy. It was said of that case in Arnson v. Murphy, 109 
 U. S. 238, 240 : "Congress, being in session at the time the decision 
 was announced, passed the explanatory act of February 26, 1845, 
 which, by legislative construction of the act of 1839, restored to the 
 claimant his right of action against the collector, but required the 
 protest to be made in writing at the time of payment of the duties 
 alleged to have been illegally exacted, and took from the Secretary of 
 the Treasury the authority to refund conferred by the act of 1839. 
 5 Stat. 349, 727. This act of 1845 was in force, as was decided in 
 Barney v. Watson, 92 U. S. 449, imtil repealed by implication by the 
 act of June 30, 1864," c. 171, 13 Stat. 202, 214, carried into the 
 Revised Statutes as sections 2931 and 3011. In the same case of 
 Arnson v. MurpJiy, 109 U. S. 238, it was decided that the common law 
 right of action against the collector to recover back duties illegally 
 collected was taken away by statute, and a remedy given, based upon 
 these sections, which was exclusive. The decision in Elliot v. Swart- 
 wout was recognized, but so far as respected customs cases (i. e. classi- 
 fication cases) was held to be superseded by the statutes. So in 
 Schoenfeld v. Hendriclcs, 152 U. S. 691, it was held that an action 
 could not be maintained against the collector, either at common law 
 or under the statutes, to recover duties alleged to have been exacted, 
 in 1892, upon an importation of merchandise, the remedy given 
 through the Board of General Appraisers being exclusive. 
 
 The criticism to be made upon the applicability of these cases is, 
 that they dealt only with imported merchandise and with duties col-
 
 DE LIMA V. BIDWELL. 615 
 
 lected thereon, and have no reference whatever to exactions made by a 
 collector, under color of the revenue laws, upon goods which have 
 never been imported at all. With respect to these the collector stands 
 as if, under color of his office, he had seized a ship or its equipment, 
 or any other article not comprehended within the scope of the tariff 
 laws. Had the sugars involved in this case been admittedly imported, 
 that is, brought into Xew York from a confessedly foreign country, 
 and the question had arisen whether they were dutiable, or belonged to 
 the free list, the case would have fallen within the Customs Admin- 
 istrative Act, since it would have turned upon a question of classifi- 
 cation. 
 
 The fact that the collector may have deposited the money in the 
 Treasury is no bar to a judgment against him, since Kev. Stat. sec. 
 989 provides that, in case of a recovery of any money exacted by him 
 and paid into the Treasury, if the court certifies that there was prob- 
 able cause for the act done, no execution shall issue against him, but 
 the amount of the judgment shall be paid out of the proper appro- 
 priation from the Treasury. 
 
 We are not impressed by the argument that, if the plaintiffs in- 
 sisted that these sugars were not imported merchandise, they should 
 have stood upon their rights, refused to enter the goods, and brought 
 an action of replevin to recover their possession. It is true that, to 
 prevent the seizure of the sugars, plaintiffs did enter them as im- 
 ported merchandise ; but any admission derivable from that fact is ex- 
 plained by their protest against the exaction of duties upon them 
 as such. They waived nothing by taking this course. The collector 
 lost nothing, since he was apprised of the course they would probably 
 take. It is true that in the Fassett Case, 142 U. S. 479, the proceed- 
 ing was by libel for possession of the vessel, which is analogous to 
 an action of replevin at common law; but it would appear that Rev. 
 Stat. sec. 934 would stand in the way of such a remedy here, since by 
 that section "all property taken or detained by any officer or other 
 person under authority of any revenue law of the United States shall 
 be irrepleviable, and shall be deemed to be in the custody of the law 
 and subject only to the orders and decrees of the courts of the United 
 States having jurisdiction thereof." If the words "under authority 
 of any revenue law" are to be construed as if they read "under color 
 of any revenue law," it would seem that these sugars could not be 
 made the subject of a replevin; but even conceding that replevin 
 would lie, we consider it merely a choice of remedies, and that the 
 plaintiffs were at liberty to waive the tort and proceed in assumpsit. 
 We are all of the opinion that this action was properly brought.
 
 616 REMEDIES FOR WRONGFUL ACTION. 
 
 WRIGHT V. BLAKESLEE. 
 
 Supreme Court of the United States. October, 1879. 
 101 United States, 175. 
 
 MR. JUSTICE BRADLEY delivered the opinion of the court. 
 
 This is an action brought by B. Huntington Wright, the plaintiff 
 in error, against Blakeslee, the defendant, formerly collector of inter- 
 nal revenue for the twenty-first revenue district of New York, to re- 
 cover the amount of a succession tax collected from the plaintiff and 
 his sister in 1867, the latter having assigned her interest to the 
 plaintiff. 
 
 The assessment or tax, with the penalty, was placed upon the assess- 
 ment roll, and delivered to the collector (the defendant) for collec- 
 tion, and he notified the parties to pay the tax. 
 
 On the 31st of July, 1867, the parties paid the tax under protest, 
 the tax paid amounting to $595.59, of which $389.56 was tax, $194.78 
 was penalty, and $11.25 was the expenses for making the assessment 
 and valuation. The amount assessed upon each, viz. B. Huntington 
 Wright and Henrietta H. Wright, was $297.29. 
 
 On the 5th of October, 1872, the Commissioner of Internal Revenue 
 wrote the parties that the claim to have the tax refunded had not been 
 submitted to the department, and forwarded them a blank to be filled 
 up and transmitted to the department, and they would then pass 
 upon the case upon its merits. 
 
 About the 3d of January, 1873, the appeal was perfected and filed 
 with the commissioner. 
 
 On the 3d of July, 1873, the commissioner rendered his decision 
 upon the merits, rejecting the whole claim, and gave notice thereof. 
 
 On the 15th of June, 1875, Henrietta D. Wright, one of the parties 
 against whom one-half of the tax had been levied and collected, trans- 
 ferred her claim to the plaintiff. 
 
 On the same day a summons was delivered to the sheriff of New 
 York to serve on defendant. 
 
 On the 24th of June, 1875, the summons was actually served on 
 defendant. The action was originally brought in the State court, but 
 was removed into the Circuit Court of the United States, upon pro- 
 ceedings had under the statute. 
 
 Upon these facts the court decided, as matter of law, that the tax 
 and penalty were properly assessed and collected, and that the plaintiff 
 ought not to recover.
 
 WRIGHT V. BLAKESLEE. 617 
 
 There is, therefore, no doubt of the plaintiff's right to recover the 
 amount of this penalty, if, when paid, the protest against its exaction 
 was sufficient. 
 
 On this point it is to be observed that the case stands on a different 
 ground from that of the illegal exaction of duties on imports. To 
 recover these, the statute makes it necessary that the party interested 
 should give notice in writing to the collector, if dissatisfied with his 
 decision, setting forth distinctly and specifically the grounds of his 
 objection thereto. Act of June 30, 1864, sect. 14; 13 Stat. 214; Rev. 
 Stat., sect. 2931; Westray v. United States, 18 Wall. 322; Barney, 
 Collector, v. Watson et al, 92 U. S. 449 ; Davies v. Arthur, 96 id. 148. 
 Xo such written notice or protest is required of a party paying illegal 
 taxes under the internal revenue laws. He must pay under protest in 
 some form, it is true, or his payment will be deemed voluntary. City 
 of Philadelphia v. The Collector, 5 Wall. 720; The Collector v. Hub- 
 bard, 12 id. 1. But whilst a written protest would in all cases be most 
 convenient, there is no statutory requirement that the protest shall be 
 in writing. In the present case, the court merely finds that the pay- 
 ment of the tax and penalty was made under protest, which may have 
 been either written or verbal. We think that this finding is sufficient 
 to show that the payment was not voluntary. It is apparent from 
 the findings, it is true, that the objection of the parties was particu- 
 larly made against the legality of the tax, and not against the penalty 
 as distinct therefrom. But, of course, the objection included the 
 penalty as well as the tax; and as the latter was clearly illegal, we 
 think that the plaintiff should have had judgment for the amount 
 thereof, unless barred by the Statute of Limitations. 
 
 We think that the defence of the Statute of Limitations cannot be 
 maintained. Under the nineteenth section of the act of July 13, 1866 
 (14 Stat. 152), no suit could be maintained for the recovery of a tax 
 illegally collected until appeal should have been duly made to the 
 Commissioner of Internal Revenue, and his decision had thereon. 
 The act contained other provisions not material to this case. In July, 
 1867, when the tax was paid, there was no statutory limitation of 
 time for presenting claims for remission of taxes to the Commissioner 
 of Internal Revenue. 
 
 On the 6th of June, 1872, an act was passed, by the forty-fourth 
 section of which it was provided that all suits for the recovery of any 
 internal tax alleged to have been erroneously assessed or collected, 
 or any penalty claimed to have been collected without authority, 
 should be brought within two years next after the cause of action 
 accrued, and not after; and all claims for refunding any internal tax
 
 618 REMEDIES FOR WRONGFUL ACTION. 
 
 or penalty should be presented to the commissioner within two years 
 next after the cause of action accrued, and not after: Provided, that 
 actions for claims which had accrued prior to the passage of the act 
 should be commenced in the courts or presented to the commissioner 
 within one year from the date of such passage: And provided further, 
 that where a claim should be pending before the commissioner, the 
 claimant might bring his action within one year after such decision, 
 and not after. 17 Stat. 257. When this act was passed, the claim 
 in the present case had not been formally presented to the commis- 
 sioner, and so did not come within the last proviso; but, for the pur- 
 pose of presentation to the commissioner, it was embraced in the first 
 proviso. The parties, therefore, had by the act one year to present 
 their claim to the commissioner; and it was thus presented on the 
 third day of January, 1873, within the time allowed for that purpose. 
 
 The commissioner rendered his decision on the third day of July, 
 1873, and then, for the first time, the parties had a right to bring suit 
 against the collector. Then their cause of action first accrued against 
 him. It is manifest, therefore, that the cause of action against the 
 collector was not embraced within either the first or the second proviso 
 of the section just cited; and that it stood upon the primary enact- 
 ment of that section requiring that suit should be brought within two 
 years next after the cause of action accrued. This would give the 
 plaintiff until the 3d of July, 1875, to bring his action. 
 
 Thus the matter stood when the Revised Statutes went into effect 
 on the 22nd of June, 1874, and there is nothing in them to change 
 the plaintiff's right. The forty-fourth section of the act of 1872 is 
 substantially re-enacted in sect. 3227 of the Revised Statutes, which 
 contains no modifications of phraseology that affect the present case. 
 And as it appears from the findings of the court that this suit was 
 commenced by delivery of the summons to the sheriff on the 15th of 
 June. 1875, it is apparent that the defence of the Statute of Limita- 
 tions cannot be maintained. 
 
 The judgment of the Circuit Court will be reversed, and the case 
 remanded with instructions to enter judgment in favor of the plain- 
 tiff for the amount of the penalties exacted from the plaintiff and 
 Henrietta H. Wright, with interest and costs; and it is 
 
 So ordered.
 
 DOOLEY V. UNITED STATES. 
 
 DOOLEY V. UNITED STATES. 
 
 Supreme Court of the United States. October, 1900. 
 182 United States 222. 
 
 This was an action begun in the Circuit Court, as a Court of 
 Claims, by the firm of Dooley, Smith & Co., engaged in trade and 
 commerce between Porto Rico and New Y'ork, to recover back certain 
 duties to the amount of $5374.68, exacted and paid under protest at 
 the port of San Juan, Porto Rico, upon several consignments of mer- 
 chandise imported into Porto Rico from New York between July 26, 
 1898, and May 1, 1900. 
 
 A demurrer was interposed upon the ground of want of jurisdiction, 
 and the insufficiency of the complaint. The Circuit Court sustained 
 the demurrer upon the second ground, and dismissed the petition. 
 Hence this writ of error. 
 
 Mr. Justice BROWN, delivered the opinion of the 
 
 court. 
 
 1. The jurisdiction of the court in this case is attacked by the 
 government upon the ground that the Circuit Court, as a Court of 
 Claims, cannot take cognizance of actions for the recovery of duties 
 illegally exacted. 
 
 By an act passed March 3, 1887, to provide for the bringing of suits 
 against the government, known as the Tucker act, 24 Stat. 505, c. 359, 
 the Court of Claims was vested with jurisdiction over "first, all 
 claims founded upon the Constitution of the United States or any law 
 of Congress, except for pensions, or upon any regulation of an Execu- 
 tive Department, or upon any contract, express or implied, with the 
 government of the United States, or for damages, liquidated or un- 
 liquidated, in cases not sounding in tort, in respect of which claims 
 the party would be entitled to redress against the United States either 
 in a court of law, equity, or admiralty, if the United States were 
 suable;" and by section 2 the District and Circuit Courts were given 
 concurrent jurisdiction to a certain amount. 
 
 The first section evidently contemplates four distinct classes of 
 cases; (1) those founded upon the Constitution or any law of Con- 
 gress, with an exception of pension cases; (2) cases founded upon a 
 regulation of an Executive Department; (3) cases of contract, express 
 or implied, with the government; (4) actions for damages, liquidated 
 or unliquidated, in cases not sounding in tort. The words "not sound- 
 ing in tort" are in terms referable only to the fourth class of cases.
 
 620 REMEDIES FOR WRONGFUL ACTION. 
 
 The exception to the jurisdiction is based upon two grounds : First, 
 that the court has no jurisdiction of cases arising under the revenue 
 laws; and, second, that it has no jurisdiction in actions for tort. 
 
 In support of the first proposition we are cited to the case of 
 Nichols v. United States, 7 Wall. 122, in which it was broadly stated 
 that "cases arising under the revenue laws are not within the jurisdic- 
 tion of the Court of Claims." The action in that case was brought to 
 recover an excess of duties paid upon certain liquors which had leaked 
 out during the voyage, and, being thus lost, were never imported in 
 fact into the United States. Plaintiffs paid the duties, as exacted, 
 but made no protest, and subsequently brought suit in the Court of 
 Claims for the overpayment. The act in force at that time gave the 
 Court of Claims power to hear and determine "all claims founded 
 upon any law of Congress, or upon any regulation of an Executive 
 Department, or upon any contract, express or implied, with the gov- 
 ernment of the United States." The court held, first, that the duties 
 could not be recovered because they were not paid under protest, and, 
 second, that Congress did not intend to confer upon the Court of 
 Claims jurisdiction of cases arising under the revenue laws, inasmuch 
 as, by the act of February 26, 1845, 5 Stat. 727, c. 22, Congress had 
 given a right of action against the collector in favor of persons "who 
 have paid, or shall hereafter pay, money, as and for duties, under 
 
 protest in order to obtain goods, wares, or merchandise 
 
 imported by him or them, or on his or their account, which duties are 
 not authorized or payable in part or in whole by law," provided that 
 protests were duly made in writing. It was held that this remedy was 
 exclusive, and that Congress, after having carefully constructed a 
 revenue system, with ample provisions to redress wrong, did not in- 
 tend to give to the taxpayer and importer a different and further 
 remedy. 
 
 Subsequent statutes, however, have so far modified that special 
 remedy that it can no longer be made available, and the broad state- 
 ment in the Nichols case, that revenue cases are not within the cog- 
 nizance of the Court of Claims, if still true, must be accepted with 
 material qualifications. By the Customs Administrative act of 1890, 
 as we have just held in DeLima v. Bid-well, an appeal is given from 
 the decision of the collector "as to the rate and amount of the duties 
 chargeable upon imported merchandise," to a board of general ap- 
 praisers, whose decision shall be final and conclusive "as to the con- 
 struction of the law and the facts respecting the classification of such 
 merchandise and the rate of duties imposed thereon under such classi- 
 fication," unless application be made for a review to the Circuit Court
 
 DOOLEY V. UNITED STATES. 621 
 
 of the United States. This remedy is doubtless exclusive as applied 
 to customs cases ; but, as we then held, it has no application to actions 
 against the collector for duties exacted upon goods which were not 
 imported at all. Such cases, although arising under the revenue laws, 
 are not within the purview of the Customs Administrative Act ; as for 
 such cases there is still a common law right of action against the 
 collector, and we think also by application to the Court of Claims. 
 There would seem to be no doubt about the plaintiffs' remedy against 
 the collector at San Juan. 
 
 In the Nichols case, it was held that, as there was a remedy by 
 action against the collector, expressly provided by statute, that remedy 
 was exclusive. In DeLima v. Bid-well we held that although no other 
 remedy was given expressly by statute than that provided by the Cus- 
 toms Administrative Act, there was still a common law remedy 
 against the collector for duties exacted upon goods not imported at 
 all; but it does not therefore follow that this remedy is exclusive, and 
 that the importer may not avail himself of his right of action in the 
 Court of Claims. 
 
 But conceding that the Nichols case does not stand in the way of a 
 suit in the Court of Claims, the government takes the position that a 
 suit in the United States to recover back duties illegally exacted by a 
 collector of customs is really an action "sounding in tort," although 
 not an action "for damages, liquidated or unliquidated" within the 
 fourth class of cases enumerated in the Tucker act. 
 
 In the cases under consideration the argument is made that the 
 money was tortiously exacted ; that the alternative of payment to the 
 collector was a seizure and sale of the merchandise for the non-pay- 
 ment of duties; and that it mattered not that at common law an 
 action for money had and received would have lain against the col- 
 lector to recover them back. But whether the exactions of these duties 
 were tortious or not ; whether it was within the power of the importer 
 to waive the tort and bring suit in the Court of Claims for money had 
 and received, as upon an implied -contract of the United States to re- 
 fund the money in case it was illegally exacted, we think the case is 
 one within the first class of cases specified in the Tucker act of claims 
 founded upon a law of Congress, namely, a revenue law, in respect to 
 which class of cases the jurisdiction of the Court of Claims, under the 
 Tucker act, has been repeatedly sustained. 
 
 Thus, in United States v. Kaufman, 96 U. S. 567, a brewer who had 
 been illegally assessed for a special tax upon his business, was held 
 entitled to bring suit in the Court of Claims to recover back the
 
 622 REMEDIES FOR WRONGFUL ACTION. 
 
 amount, upon the ground that no special remedy had been provided 
 for the enforcement of the payment, and consequently the general 
 laws which govern the Court of Claims may be resorted to for relief, 
 if any can be found applicable to such a case. This is upon the prin- 
 ciple that a liability created by statute without a remedy may be en- 
 forced by a common law action. The Nichols case was distinguished 
 upon the ground that the statute there had provided a special remedy. 
 
 So, too, in United States v. Savings Bank, 104 U. S. 728, the Court 
 of Claims was held to have jurisdiction of a suit to recover back cer- 
 tain taxes and penalties assessed upon a savings bank. 
 
 In Campbell v. United States, 107 II. S. 407, it was held that a 
 party claiming to be entitled to a drawback of duties upon manufac- 
 tured articles exported might, when payment thereof has been refused, 
 maintain a suit in the Court of Claims, because the facts raised an 
 implied contract that the United States would refund to the importer 
 the amount he had paid to the government. There was here no ques- 
 tion of tort. 
 
 Cases in this collection illustrative of the law relative to the refunding 
 of taxes are: Collector v. Beggs, 17 Wallace (U.S.) i82 ; Dyer v. Osborne, 
 11 R. I. 321 ; Knowlton v. Moore, 178 U. S. 41 ; Ould v. Richmond, 23 Grat- 
 tan (Va.) 464; State Tonnage Tax Cases, 12 Wallace 204; Torrey v. In- 
 habitants, 21 Pickering (Mass.) 64; Tyler v. Inhabitants, 6 Metcalf (Mass.) 
 470; Veazie Bank v. Fenno, 8 Wallace (U. S.) 533. 
 
 II. REMEDIES AGAINST ASSESSMENTS. 
 
 1. Certiorari. 
 PEOPLE V. TRUSTEES OF OGDENSBURGH. 
 
 Court of Appeals of New York. January, 1812. 
 48 New York, 391. 
 
 Appeal from judgment of the General Term of the Supreme 
 Court in the fourth judicial district, quashing a common law writ 
 of certiorari, which was allowed at a Special Term of the Supreme 
 Court, to rescind an assessment against the relators, as agents of 
 George Parish, a resident of Bohemia, made in 1866. The return of 
 the defendants to the writ shows that their predecessors in office 
 made the assessment complained of, and it contains all the pro- 
 ceedings had before the board of trustees, and their action thereon.
 
 PEOPLE V. TRUSTEES OF OGDENSBURGH. 623 
 
 The leading features of the return and other facts appear suffi- 
 ciently in the opinion. 
 
 EARL, C. The charter of the village of Ogdensburgh, as amended 
 by chapter 62 of the Laws of 1865, provides that on or before the 
 first day of May, in each year, it shall be the duty of the trustees 
 to prepare an assessment roll of the property in the said village 
 subject to taxation, with the valuation thereof as set down in the 
 last preceding assessment roll, or as the same may be changed under 
 the authority given in the charter; and to add to such assessment 
 roll any property liable to taxation with the taxable value thereof, 
 which may have come within the corporation since the making of 
 the town assessment roll, or which may have been omitted thereon, 
 and, in their discretion, to reassess any property which, since the 
 making of the town assessment roll, has changed its value. The 
 trustees are clothed with the same power to administer oaths and 
 correct valuations as is given by law to town assessors, and they 
 may employ a special clerk to do the clerical duty and ascertain 
 unassessed property under their direction; and upon the completion 
 of the roll, they are required to cause notice to be published of 
 a time and place to hear objections. At the time and place speci- 
 fied, they are required to meet and hear objections and correct the 
 roll as the facts may require, and the roll, when so corrected, is 
 declared to be final and conclusive. 
 
 The facts contained in the return to the writ cannot be dis- 
 puted, and must be taken as true. 
 
 It has been finally settled that a common-law certiorari to review 
 the proceedings of assessors, brings up the merits as well as ques- 
 tions of jurisdiction and regularity, and that where assessors have 
 neither exceeded their powers, nor been irregular in exercising them, 
 the court will still, upon the facts appearing in the return, examine 
 and correct their decisions if erroneous. People v. The Assessors 
 of Albany, 40 N. Y. 154. I will, therefore, proceed to examine 
 this case upon the merits. 
 
 The return shows that the relators were, at the time the assess- 
 ment was made, the sole general agents of George Parish, a resident 
 of Bohemia, and that as such agents they had possession and control 
 of "all his real and personal property and estate, debts, dues, 
 choses, claims and demands," in said village and within the county 
 of St. Lawrence; that the trustees assessed them as such agents 
 for $50,000 of personal property, and that after hearing their ob- 
 jections at the time and place appointed for that purpose they 
 reduced this sum to $30,000. The relators claimed that the
 
 624 KEMEDIES FOR WRONGFUL ACTION. 
 
 whole amount should be stricken off from the assessment roll, and 
 the first inquiry is, whether they had $30,000 of taxable property 
 in their possession or under their control. The law makes it the 
 duty of the trustees or assessors, when the property is not upon the 
 town assessment roll, to place a value upon it for the purpose of 
 taxation. They are to search out the property, and place a value 
 upon it, and then place it upon the assessment roll. When they 
 have done this, the roll furnishes prima facie evidence that the 
 property is taxable, and its value. After the completion of the 
 roll, they are required to give notice of a time and place to 
 hear objections, and at such time and place they are required to 
 hear proofs and objections, and to make corrections as town assessors 
 are required to. 
 
 By section 6 of chapter 176 of Laws of 1851, as amended by 
 chapter 536 of Laws of 1857, it is provided that "whenever any 
 person on his own behalf, or on behalf of those whom he may rep- 
 resent, shall apply to the assessors of any town or ward to reduce 
 the value of his real and personal estate, as set down in the 
 assessment roll, it shall be the duty of such assessors to examine 
 such person under oath, touching the value of his or their said 
 real or personal estate, and after such examination and such sup- 
 plementary evidence, under oath, as shall be presented by the 
 party aggrieved, they shall fix the value thereof at such sum as they 
 shall deem just; but if such person shall refuse to answer any ques- 
 tion as to the value of his real or personal estate, or the amount 
 thereof, or present supplementary evidence under oath to justify 
 a reduction, the said assessors shall not reduce the value of such 
 real or personal estate." By this statute the assessors are not 
 bound by the oath taken before them. They are required to hear 
 the proofs and then to fix the value "at such sum as they may deem 
 just/' Where the property is visible, the assessors are supposed to 
 have viewed it. If an oath should be made before them that cer- 
 tain land assessed is worth but $50 per acre, they may still, if 
 they think it worth so much, assess it at $100 per acre; or if 
 an oath should be made that personal property is worth only $1,000, 
 they may still assess it at $3,000. The statute makes them the 
 judges of the value of the property for the purposes of taxation. 
 They are required to exercise their judgment as to its value, not- 
 withstanding any proof that may be produced before them, and the 
 case would have to be a very extraordinary one which would auth- 
 orize the Supreme Court upon certiorari to review their judgment. 
 Indeed, it would be quite impracticable in most cases for the
 
 PEOPLE V. TRUSTEES OF OGDENSBURGH. 625 
 
 Supreme Court upon certiorari to correct the judgment of the 
 assessor? as to values, and my attention has been called to no 
 case where it has been done. 
 
 If, however, the assessors place upon the assessment roll property 
 not liable to taxation; and they refuse, upon the application of 
 the person aggrieved, to strike it off, then their action can be 
 reviewed by certiorari; as if they assess personal property which 
 has its situs in another state (Hoyt v. The Commissioners of 
 Taxes, 23 N. Y., 224; People v. Gardner, 51 Barb., 352), or which 
 is exempt from taxation by the laws of the State or of the United 
 States. 
 
 The facts returned show that the relators had in their possession, , 
 as such agents, a large amount of household furniture and effects 
 in the mansion of their principal in the village, consisting of 
 silver and plated ware, mirrors, books, pictures, wines, cigars and 
 other articles. A list of these articles seems to have been furnished 
 by one of the relators, with the value of each article set down, 
 and the value of the whole, as estimated by him, is $5,896. There 
 is no evidence what value the trustees put upon this property. 
 They were also acting under oath, and they may have valued it at 
 a much larger sum. Suppose they valued it at $10,000 or $15,000; 
 how could the Supreme Court or this court determine that the one 
 or the other party was in error as to the valuation all the parties 
 really giving their estimate under oath? We are unable to say, 
 therefore, how much of the $30,000 was made up or ought to have 
 been made up of this furniture. It also appears that on the 
 first day of May the relators, as such agents, had $6,000 in money 
 in banks. It matters not that it was subsequently used. It was 
 there when the assessment was made, and was thus liable to be 
 assessed. It may, therefore, be assumed that this $6,000 was part 
 of the $30,000. It also appeared that the relators, as such agents, 
 had in their possession contracts for the sale of land amounting 
 to more than $50,000, less (it is not stated how much less) than 
 $20,000 of which was for land sold in the town in which the vil- 
 lage of Ogdensburgh was situated, and hence we may assume that 
 nearly $20,000, on account of these contracts entered into the said 
 sum of $30,000. It does not appear, therefore, that the trustees 
 erred m the amount at which they assessed the relators; and the 
 only other question to be considered is, whether this amount was 
 properly assessed to them as the agents of Parish. 
 
 That the furniture in the mansion and the money in the bank 
 40 
 
 , ,* 
 ^ '
 
 626 REMEDIES FOR WRONGFUL ACTION. 
 
 were, under these provisions, properly assessable to the relators is 
 not seriously disputed. And I am unable to see why the money 
 due upon the land contracts must not be assessed in the same way. 
 
 I have, therefore, upon the merits of this case, reached a con- 
 clusion adverse to the relators, without examining or passing upon 
 various technical objections raised and discussed by the counsel 
 for the respondents. 
 
 The judgment should be affirmed with costs. 
 
 All concur. 
 
 Judgment affirmed. 
 
 PEOPLE EX REL. WARREN V. CARTER, 
 
 Court of Appeals of New York. June, 1888. 
 109 New York, 576. 
 
 Appeal from order of the General Term of the Supreme Court 
 in the third judicial department, made November 15, 1887, which 
 affirmed an order of the special term reducing assessments on the 
 real property of the relators, made in certiorari proceedings under 
 chapter 269 of the Laws of 1880. (Reported below, 46 Hun, 444.) 
 
 The relators were assessed for the year 1886, in the city of 
 Troy, upon three parcels of land, one parcel known as "River 
 View," containing thirty acres, which was assessed at $60,500; 
 lot 194, on the west side of Third street, on which were two houses 
 numbered 47 and 49, assessed at $29,000, and a third parcel, con^ 
 taining ten acres, which was assessed at $12,000, but which latter 
 assessment is not now in controversy. The relators, within fifteen 
 days after the completion of the assessment-roll and its delivery 
 to the comptroller, procured a writ of certiorari to be issued under 
 the act of 1880, directed to the assessors of the city and to the 
 comptroller, upon a petition, alleging, in substance, that the said 
 several assessments were erroneous by reason of over-valuation and 
 inequality. 
 
 In support of the allegation of inequality the petition sets forth 
 that the lands of the relator were no more valuable than lands 
 in close proximity thereto, while the assessment thereof was largely 
 in excess of the assessment of such other lands. The allegations 
 of over-valuation or inequality set forth in the petition, and incor-
 
 PEOPLE EX EEL. WARREN V. CARTER. 627 
 
 portated in the writ issued thereunder, were fully denied in the 
 return made to the writ, and the court, on the matter coming before 
 it, appointed a referee to take the proofs, and on the coming in of 
 his report the court decided that the assessment of the "River View" 
 property was erroneous for over valuation in the sum of $20,500, 
 and reduced the amount from $60,500 to $40,000. The court also 
 decided that the assessment of "lot 194 and houses 47 and 49, 
 west side Third street/' assessed at $29,000, was unequal "in that 
 it had been made at a higher proportionate valuation than other 
 real property on the same roll in immediate proximity thereto," 
 and that the assessment on lot 194 should be reduced $3,900 to 
 make it proportionately equal to the assessment on the lots immedi- 
 ately adjoining. 
 
 There was proof to sustain the finding of over-valuation in 
 respect to the "River View" property. The only evidence to sus- 
 tain the finding of inequality in the assessment of lot 194 was that 
 the assessment of lot 193, adjoining, was relatively lower than 
 the assessment on lot 194, and the court found that the inequality 
 amounted to the sum of $3,900. 
 
 ANDREWS, J. All real and personal estate in this state not 
 especially exempted is, by law, liable to taxation upon an assess- 
 ment at its full value. The tax laws proceed upon the theory that 
 all property protected by law should bear its equal burden of taxa- 
 tion, and the statutory system, if exactly administered according 
 to the letter of the statutes, would result in perfect equality of 
 benefit and burden and none would have any just ground of 
 complaint. But no system of taxation has as yet been devised 
 which is capable of complete and perfect administration. The 
 ascertainment and valuation of property liable to taxation is, under 
 our system, committed to a board of assessors. In discharging their 
 functions, mistakes or errors are liable to be committed, which pre- 
 vent a perfect execution of the system of assessment. It is known 
 that a large amount of personal property escapes taxation either 
 from the negligence of assessors or because its existence cannot 
 be ascertained. So, also, property may be listed which is not liable 
 to assessment, or the assessors, from mistake, inadvertence or mis- 
 judgment, may place an erroneous valuation on property, either 
 more or less than its actual value, thereby producing inequality 
 of taxation. The act of 1880 deals with the subject of assess- 
 ments in respect to illegality, over-valuation, and inequality of 
 valuation, and authorizes a review on certiorari at the instance of 
 any person or corporation assessed who claims to have been ag-
 
 628 KEMEDIES FOR WKONGFTJL ACTION. 
 
 grieved by an assessment in either of the respects mentioned. The 
 remedy afforded by the act, where the assessment is illegal or where 
 there is an over-valuation, is simple, practicable and complete. The 
 question whether the assessment complained of is illegal presents 
 purely a question of law on facts appearing on the assessment roll, 
 or which may be readily ascertained by evidence. The question 
 of over-valuation is, in its nature, simple and free from perplex- 
 ity, and is solved, as is every other fact submitted to the court for 
 determination in case of conflict, by the weight and preponderance 
 of evidence. The clause in the act of 1880, which gives a remedy 
 where the valuation "is unequal, in that the assessment has been 
 made at a higher proportionate valuation than other real and per- 
 sonal property on the same roll by the same officers," presents a 
 question of much greater difficulty. It is claimed on the part of the 
 relators, that, by the true construction of this clause, it is sufficient, 
 to entitle a property owner to a reduction of his assessment, that 
 some other property of the same description, real or personal, is 
 valued on the same roll at a less proportionate value than his own. 
 This being established, it is claimed that the party claiming the 
 benefit of the statute is entitled to a reduction of the valuation of 
 his property to correspond with the valuation affixed by the assess- 
 ors on the property having such lower proportionate valuation. We 
 concur with Judge PABKER in his dissenting opinion below upon 
 this point. The obvious result of the construction claimed by the 
 relators, if adopted, would be, as is pointed out by Judge PARKER, 
 that every property owner whose property is assessed, could demand 
 that the assessment of his property should be reduced to a valuation 
 proportionate to the lowest valuation of any similar property on 
 the assessment roll, situate anywhere in the town or assessment dis- 
 trict, although his own property was not assessed beyond its actual 
 value, and although it was not made to appear that, by reason of the 
 under-valuation of the particular property with which it was com- 
 pared, the claimant would be compelled to pay more than his 
 due share of the aggregate tax. In the nature of things, it is im- 
 possible that all valuations should represent the precise actual 
 value of the property valued. If a particular piece of property 
 on an assessment-roll is under-valued, another may be correspond- 
 ingly over-valued. Where there is no over-valuation of his own 
 property, it does not follow that the taxpayer will be injured by 
 an under-valuation of some piece of property belonging to another. 
 If all the valuations fin the assessment roll, other than that of the 
 party complaining, were proportionately equal, and also proportion-
 
 PEOPLE EX REL. WARREN V. CARTER. 629 
 
 ately lower than the valuation of his property, injury to the claim- 
 ant might, perhaps, be a just inference. The mere fact that the 
 claimant can show that his land is assessed proportionately higher 
 than a certain other piece on the same roll does not alone show that 
 he is aggrieved, or that he will be compelled to pay more than his 
 just share of the aggregate tax. By the terms of the act of 1880, 
 it must be made to appear that the party seeking the remedy 
 afforded thereby "is, or will be, injured by the alleged illegal, erron- 
 eous or unequal assessment" of which he complains. The adoption 
 of the construction of the act of 1880, contended for by the relator, 
 would greatly embarrass the collection of taxes and lead to burden- 
 some litigation, while at the same time it would award relief 
 in many and probably in most cases where no real right was in- 
 fringed, nor an actual injury suffered. Those property owners 
 who were alert and prompt to avail themselves of the act, would 
 succeed in shifting a part of the burden of taxation from their 
 own shoulders and casting it upon those less vigilant and active. 
 Where the assessors in a particular case depart from a general 
 rule or ratio of assessment which they have adopted, to the injury 
 of the taxpayer in the particular case, the statute affords a remedy. 
 Without undertaking to define the precise scope of the remedy for 
 disproportionate valuations of property, given by the act of 1880, 
 we think it may be safely said that the petitioner must show a 
 state of facts from which a presumption justly arises that the 
 inequality of which he complains will subject him to the payment 
 of more than his just proportion of the aggregate tax, and that 
 this presumption is not raised by proof that in a particular in- 
 stance property is assessed at a proportionately lower valuation 
 than his own. Nor does it, we think, make any difference that the 
 assessments compared were of contiguous property. The object of 
 the statute- was to afford a remedy to a party injured by unequal 
 valuations, not to enable him, on the mere proof of a mistake or 
 misjudgment of the assessors, as to the relative valuation of hia 
 property and that of another, to have his assessment reduced, 
 although his own property was not over-valued, and it does nof 
 appear, taking into view the aggregate assessment and valuation of 
 the taxable property on the roll, that he will be compelled to pay 
 more than his just share of the tax. 
 
 The conclusion of the court below that there was an over-valua- 
 tion of the property known as "River View," is supported by 
 evidence, and is not reviewable in this court. (People ex rel. R. W.
 
 G30 REMEDIES FOR WRONGFUL ACTION. 
 
 & 0. R. R. Co. v. Hicks, 105 N. Y., 198, 200.) The order, so far 
 as it relates to that property, should be affirmed. 
 
 That part of the order relating to the assessment on lot No. 
 194 West Third street should be reversed. The court did not sus- 
 tain the claim of over-valuation in respect to that lot, but reduced 
 the assessment on the ground of disproportionate valuation as 
 between lot 194 and lot 193. This ground, as we have held, is 
 untenable. 
 
 The order of the General Term should be affirmed as to "River 
 View" property, and the order of the Special and General Terms as 
 to the assessment on lot 194 should be reversed. 
 
 All concur. 
 
 Ordered accordingly. 
 
 Other cases in this collection illustrative of the use of the certiorari in 
 tax matters are: People v. Barker, 146 N. Y. 304; People v. Coleman, 126 
 N. Y. 433; People v. Cummissioners, 23 N. Y. 224; People v. Forrest, 96 
 N. Y. 544; People v. Mayor, 4 N. Y. 419; People v; Smith, 88 N. Y. 576; 
 People v. Sacramento County, 59 Cal. 321; People v. Wemple, 117 N. Y. 
 136; State v. City of Newark, 3 Dutcher (N. J. L.) 186; State v. Platt, 24 
 N. J. L. 108; State v. Sickles, 4 Zabriskie (N. J. L.) 125; Whiteford Town- 
 ship v. Probate Judge, 53 Mich. 130; Williamson v. New Jersey, 130 U. S. 
 189. 
 
 II. STATUTORY APPEAL. 
 THE MANCHESTER MILLS V. CITY OF MANCHESTER. 
 
 Superior Court of Judicature of New Hampshire. June, 1876. 
 57 New Hampshire, 309. 
 
 Petition, for abatement of taxes, representing that the assessors 
 of Manchester, in April, 1874, assessed a tax upon the petitioners' 
 property in said city, under the name of the Manchester Prinf" 
 Works and Mills, rating the land and buildings of the corporation 
 at $400,000, and the factories and machinery at $950,000, and 
 assessing a tax upon that valuation. 
 
 The petitioners represent that according to the valuation and 
 taxation of other property in said city for this and other years, 
 the valuation of the land and buildings should not have been 
 above $150,000, and of the factories and machinery, $500,000; that 
 on July 25, 1874, they made application to said assessors for an 
 abatement of said tax, which was refused. 
 
 At the September term of this court the petition was referred 
 to Aaron W. Sawver and John S. H. Frink.
 
 MANCHESTER MILLS V. MAN CHESTER 631 
 
 At this term the referees submitted their report. 
 
 The counsel for the city thereupon filed objections to the report 
 and moved that the same be set aside. 
 
 CUSHING, C. J. The petitioners represent that at the time of 
 the assessment complained of their land and buildings were valued 
 at $400,000, their factories and machinery at $950,000; and they 
 allege that this valuation, according to the valuation of other 
 property in this and other years, was much too large; and for 
 this reason they claim an abatement of the tax. It is worth while 
 to note in the beginning what the ground was on which they claim 
 their abatement of taxes. It was not that their property was 
 appraised too high according to its real value, or even high enough, 
 but that it was appraised too high according to the valuation of 
 other property. The city of Manchester does not appear to have 
 made in the outset any objection to the lawfulness or justness of 
 this claim. The record does not show that it was objected on the 
 part of the city that this property ought to be valued at its exact 
 market value, while all the other property in Manchester was valued 
 at a much less rate; but at the time when the commission was 
 issued it was apparently conceded that if this property was really 
 valued at a much higher rate than other property for the purpose 
 of taxation, it would be just that it should be abated. 
 
 Xor is it easy to see how the city could contend that this claim 
 of the petitioners was not just, assuming that the facts on which 
 it rested were true; and I think it would be difficult so to contend. 
 I believe it is admitted to be just and lawful that each person 
 should bear the burden of taxation equally with all others. In or- 
 der to produce this result, it is necessary that all property should 
 be valued proportionally; and if for any reason, whether to prevent 
 the city from being rated too high by the legislature in fixing the 
 share of state and county taxes which each town and city is re- 
 quired to pay, or for any other reason, the authorities had valued 
 all other property at less than its true value, the petitioners' prop- 
 erty for purpose? of taxation ought to be valued at the same rate. 
 
 The law requires that the circuit court shall make such order on 
 this petition as is just. I think we ought to hold as law, that, 
 whenever it shall be made to appear that the property in any town 
 or city has been designedly appraised at less than its true value, 
 the question to be determined is, whether the property on which
 
 632 REMEDIES FOR WRONGFUL ACTION. 
 
 the petitioners claim an abatement of tax has been over-valued ac- 
 cording to that rate. 
 
 If it were true, that, because the law requires that all property 
 should be appraised for the purposes of taxation at its fair cash 
 value, the court is bound to presume that this has been done, and 
 is therefore estopped from inquiring into anything but the actual 
 value of the property in question, then the petition ought to have 
 been dismissed instead of being sent to a commission, because it 
 requires of the court what the court, according to that view of the 
 law, cannot lawfully grant. 
 
 The petition, however, was neither dismissed nor amended ; and 
 we are therefore to understand that when the commission issued it 
 was then understood by all the parties that if the allegations in the 
 petitions were true it would be just that the tax should be abated. 
 
 The committee having reported, the defendants move to set aside 
 the report, on the ground that evidence was admitted which ought 
 not to have been; and we learn from the report that this evidence 
 related to the value of other real estate, excepting manufacturing 
 establishments, situated in various parts of the city of Manchester; 
 and this is the first question of law presented. Is the court to re- 
 ject this whole report, or any part of it, because such evidence was 
 admitted? The objection in this form is not that the committee 
 have reported facts which they ought not to have reported, but that 
 they have admitted evidence which they ought not to have admit- 
 ted; and evidence of such a character as that having been received, 
 there would be danger that it would improperly influence the minds 
 of the committee, and so make their report worthless in regard to 
 the matters which they were required to investigate. 
 
 Would the inquiry into the value of real estate in different parts 
 of the city, whether similar or not to the land and buildings of the 
 petitioners, exercise such a disturbing influence on the minds of 
 the committee as to destroy the value of the report as to those mat- 
 ters which they were directed to report upon? I cannot see that it 
 would. The petition makes two classes of property land and build- 
 ings, and factories and machinery. I suppose a factory is a build- 
 ing, but I understand from the petition there are other buildings 
 and land, whether used for boarding-houses or storage or cultiva- 
 tion, which are different from factories, and perhaps subject to dif- 
 ferent considerations. I am quite unable to see, as matter of law, 
 that the land and buildings of the petitioners are not similar to the 
 other lands and buildings examined by the committee; but I am
 
 MANCHESTER MILLS V. MANCHESTER. 633 
 
 quite ready to believe, as a matter of fact, when the committee say, 
 as I understand they do substantially, that they have inquired into 
 the value of similar real estate, that this is true, and that the com- 
 mittee justly instituted comparisons between the appraisal of the 
 land and buildings of the petitioners and other lands and build- 
 ings in different parts of the city, even if it were true that some of 
 the "lands and buildings" examined were not exactly like the "land 
 and buildings" of the petitioners. I can therefore find nothing, a.s 
 matter of law, to complain of in this proceeding; and I think it 
 would be useful for the circuit court, in determining the matter of 
 fact which it has before it, to consider and weigh this part of the 
 report. 
 
 It appears to me that the matters on which the committee were 
 directed to report do not cover the whole ground. The allegation 
 in the petition is, that the property of the petitioners is appraised 
 too high, according to the valuation of other property. The petition 
 does not say, as it appears from the printed case, that the appraisal 
 is too high according to the valuation of other similar property, but 
 it is too high according to the valuation of other property. 
 
 On what possible ground could a board of assessors be justified in 
 taxing the property of manufacturing corporations, and appraising 
 it at seven tenths of its true value, and real estate at one half of 
 its true value? I hold that, as matter of law, the court, in order 
 to do what justice requires, ought to ascertain the value of this 
 property according to the valuation of other property. If it be 
 true that some property is intentionally appraised at seven tenth? 
 of its true value, and other property at one half of its real value, 
 and still other property at a different rate, the property of these 
 petitioners ought to be appraised at what would be a fair average 
 rate. 
 
 If it turns out, on examination, that there is a settled usage in 
 regard to this matter, and that the assessors of the city of Manches- 
 ter deliberately, and as a rule, appraise property at less than its 
 true value, then, as matter of law, I hold that this property ought 
 to be appraised in the same way; and if it be true that by accident 
 or mistake or erroneous judgments the property of these petitioners 
 has been appraised at a higher rate than other property, then I 
 think that, as matter of law, it is just that the tax should be re- 
 duced. Whether the report furnishes to the circuit court all the 
 needed information, is not matter of law, but matter of fact, to be 
 determined by that court.
 
 634 REMEDIES FOR WRONGFUL ACTION. 
 
 The circuit court is the trier of the facts. If on the evidence 
 already furnished it finds itself desiring further information, it can 
 say so, and either recommit the case, or perhaps hear evidence itself. 
 But in the end the question should be, whether the property of the 
 petitioners is rated too high according to the valuation of other 
 
 property. 
 
 Motion denied. 
 
 See also Supervisors v. C, B. & Q. R. R. Co., 44 111. 229, supra. 
 
 PASSAVANT V. UNITED STATES. 
 
 Supreme Court of the United States. October, 1892. 
 148 United States, 214. 
 
 Mr. Justice JACKSON delivered the opinion of the court. 
 
 The principal question presented by the record in this case is 
 whether, under the Customs Administrative act of June 10, 1890, 
 26 Stat. c. 407, p. 131, the Circuit Courts of the United States 
 have any jurisdiction to entertain an appeal by importers from a de- 
 cision of the board of general appraisers, as to the dutiable value of 
 imported merchandise; in other words, whether the Circuit Courts 
 of the United States have, under the provisions of said act, any au- 
 thority or jurisdiction, on the application of dissatisfied importers, 
 to review and reverse a decision of a board of general appraisers, as- 
 certaining and fixing the dutiable value of imported goods, when 
 such board has acted in pursuance of law, and without fraud, or 
 other misconduct, from which bad faith could be implied. 
 
 The material facts of the case on which this question arises are 
 the following: In November, 1890, and July, 1891, the appellants, 
 Passavant & Co., imported into New York from France gloves of 
 different classes or grades, which were entered by the importers at 
 certain valuations. The collector of the port of New York, under 
 the authority conferred by section 10 of said administrative act, 
 caused the imported goods to be appraised, and upon such appraisal 
 their value was advanced or increased by the appraiser to an amount 
 exceeding by more than 10 per cent the value thereof as declared by 
 the importers upon entry. The importers being dissatisfied with 
 this advanced valuation, a reappraisement was made by one of the 
 general appraisers and on further objection by the importers to 
 this valuation, the matter was sent to the board of general .apprais-
 
 PASSAVA-NT V. UNITED STATES. *& 
 
 ere, under and in accordance with the provisions of section 13 of 
 the Customs Administrative Act. This board after due notice, and 
 examination of the question submitted, sustained the increased val- 
 uation of the merchandise. Thereupon the collector of the port 
 levied and assessed upon the imported goods a duty of fifty per cent 
 ad valorem, that being the rate of duty on the gloves under para- 
 graph 458 of the tariff act of October 1, 1890, and in addition 
 thereto a further sum equal to two (2) per cent of the total ap- 
 praised value for each 1 per cent that such appraised value ex- 
 ceeded the value declared in the entry, under and by virtue of sec- 
 tion ? of said act of June 10, 1890. 
 
 
 
 The importers duly served upon the collector a protest against his 
 appraisement of duty for any and all excess above 50 per cent ad 
 valorem, and upon any greater value than the declared or entered 
 value, for the alleged reasons that no legal reappraisement had been 
 made; that the board of appraisers had declined to receive or en- 
 tertain evidence offered by them as to the true market value of the 
 merchandise; that the board had determined matters upon esti- 
 mates or values furnished by agents of the Treasury; that evidence 
 of persons who were not experts, and had no personal knowledge of 
 the value of gloves in the markets of France, had been taken and 
 acted on; that the importers were given no opportunity to contro- 
 vert evidence against them; that the original invoice was correct; 
 that the duties should not be assessed upon any greater amount, 
 and that the action of the board was in all respects illegal. The 
 collector duly transmitted this protest, with the papers in the case, 
 to the board of general appraisers, who adhered to the increased val- 
 uation, affirmed the action of the collector, and held that the de- 
 cision of the board as to such valuation was final and conclusive 
 under section 13 of said act of June 10, 1890, and could not be 
 impeached or reviewed upon protest. Thereupon and within due 
 time the importers filed their application in the United States Cir- 
 cuit Court for the Southern District of Xew York for a review of 
 the case, and a reversal of the decision of the board of appraisers 
 and the action of the collector in assessing the duties on the basis of 
 the increased valuation placed upon the imported merchandise, and 
 in imposing the additional duty as provided by said section 7, above 
 referred to. 
 
 Upon the record as thu> presented the Assistant United States 
 Attorney moved the court to dismiss the application or appeal for
 
 636 EEMEDIES FOR WRONGFUL ACTION. 
 
 want of jurisdiction to entertain the same. The motion was sus- 
 tained, and the Circuit Court thereupon certified to this court, un- 
 der the fifth section of the act of March 3, 1891, 26 Stat. c. 517, 
 pp. 826, 827, the question whether said court had any jurisdiction 
 to enter upon, hear and decide the issues sought to be raised by tho 
 allegations of the petition, which are specially set out in the cer- 
 tificate, but need not be here enumerated, as they are embraced in 
 the general claims or propositions, hereinafter stated, which are re- 
 lied on by appellants before this court. 
 
 The certificate and the appeal, therefore, present substantially 
 the same question, and need not, for that reason, be separately con- 
 sidered. It is not claimed or alleged in either the protests made 
 by the importers as to the appraisement of the merchandise, or in 
 their application to the Circuit Court to review and reverse the de- 
 cision of the board of general appraisers, that there was any wrong- 
 ful or erroneous classification of the gloves, or improper rate of duty 
 levied thereon under the tariff act of October 1, 1890; but the sub- 
 stantial complaint is that the dutiable value of the imported goods 
 was not greater than the value mentioned in the invoice and de- 
 clared in the entry, and that the advanced appraisement was, there- 
 fore, erroneous, and also that the merchandise was not liable for 
 any additional or penal duty such as the collector levied and im- 
 posed thereon under section 7 of the act of June 10, 1890, by reason 
 of the advanced or increased valuation placed upon the same by 
 the appraisers. 
 
 Can a complaint of this character be entertained and considered 
 by the Circuit Courts of the United States in a case like the pres- 
 ent, where the board of general appraisers has, upon the appeal of 
 the importers, ascertained and decided that the imported article 
 actually possesses a value greater than that stated in the invoice or 
 entry? Can the decision of the board on the question of the duti- 
 able value of the merchandise be reviewed by the courts under the 
 provisions of section 15 of the Customs Administrative Act? This 
 is the real question presented, and we are clearly of the opinion 
 that no such jurisdiction is conferred by this statute or any other 
 provision of law. It is provided by section 15 of the act "that if 
 the owner, importer, consignee or agent of any imported merchan- 
 dise, or the collector or the Secretary of the Treasury, shall be dis- 
 satisfied with the decision of the board of general appraisers, as pro- 
 vided for in section 14 of this act, as to the construction of the 
 law and the facts respecting the classification, they or either of them
 
 PASSAVAttT V. UNITED STATES. 637 
 
 may, within thirty days next after such decision, and not after- 
 wards, apply to the Circuit Court of the United States within the 
 district in which the matter arises, for a review of the questions of 
 law and fact involved in such decision." 
 
 It was said by Mr. Justice Blatchford, speaking for the court in 
 In re Fasseti, 142 U. S. 479, 487, that "the appeal provided for in 
 section 15 [of said act] brings up for review in court only the de- 
 cision of the board of general appraisers as to the construction of 
 the law, and the facts respecting the classification of imported mer- 
 chandise and the rate of duty imposed thereon under such classifica- 
 tion. It does not bring up for review the question of whether an 
 article is imported merchandise or not, nor under 15 is the ascer- 
 tainment of that fact such a decision as is provided for. The de- 
 cisions of the collector from which appeals are provided for by 
 14 are only decisions as to 'the rate and amount' of duties charged 
 upon imported merchandise, and decisions as to the dutiable costs 
 and charges and decisions as to fees and exactions of whatever char- 
 acter." 
 
 The appeal to the court in the present case seeks to review no 
 such decisions as are thus enumerated as falling within its jurisdic- 
 tion under said sections. On the contrary, the decision of the board 
 of general appraisers sought to be reviewed and corrected by this 
 application to the court relates to the reappraisement of the im- 
 ported goods. By section 13 of the act the decision of the board 
 on that matter is declared to "be final and conclusive as to the 
 dutiable value of such merchandise against all parties interested 
 therein." On such valuation the collector, or the person acting as 
 such, is required to ascertain, fix and liquidate the rate and amount 
 of duties to be paid on such merchandise and the dutiable costs and 
 charges thereon according to law. 
 
 It was certainly competent for Congress to create this board of 
 general appraisers, called "legislative referees" in an early case in 
 this court, (Rankin v.'Hoyt, 4 How. 327, 335.) and not only in- 
 vest them with authority to examine and decide upon the valuation 
 of imported goods, when that question was properly submitted to 
 them, but to declare that their decision "shall be final and con- 
 clusive as to the dutiable value of such merchandise against all par- 
 ties interested therein." 
 
 In Hilton et al v. Merritt, 110 U. S. 97, it was held that the 
 valuation of merchandise made by customs officers, under the stat- 
 utes, for the purpose of levying duties thereon, was conclusive on 
 the importer, in the absence of fraud on the part of the officers. In
 
 638 REMEDIES FOR WRONGFUL ACTION. 
 
 this case several sections of the Revised Statutes of the United 
 States; relating to customs duties, were referred to, among them 
 being section 2930, which prescribed the method of appraising im- 
 ported merchandise, and provided that "the appraisement thus de- 
 termined shall be final and deemed to be the true value, and the 
 duties shall be levied thereon accordingly." Under that provision 
 this court held that the valuation of imported merchandise made 
 by the designated officials or appraisers was, in the absence of fraud 
 on the part of such appraisers, conclusive on the importer. The 
 same rule was reasserted in the recent case of Earnshaw v. United 
 States, 146 U. S. 60, in which it was held that a reappraisement of 
 imported merchandise under the provisions of section 2930, Revised 
 Statutes, when properly conducted, was binding. The earlier de- 
 cisions of this court cited and referred to in Hilton v. Merritt and 
 Earnshaw v. United States, established the same general rule. The 
 provisions of the Customs Administrative Act of June 10, 1890, as 
 to the finality arid collusiveness of the decision of the board of 
 general appraisers as to the valuation of imported merchandise, 
 when that question was regularly submitted to and examined by 
 them, is expressed in clearer and more emphatic terms than in for- 
 mer statutes. The language is so explicit as to leave no room for 
 construction. In the tariff legislation of the government, congress 
 has generally adopted means and methods for a speedy and equita- 
 ble adjustment of the question as to the market value of imported 
 articles, without allowing an appeal to the courts to review the de- 
 cision reached. If dissatisfied importers, after exhausting the rem- 
 edies provided by the statute to ascertain and determine the fair 
 dutiable value of imported merchandise, could apply to the courts 
 to have a review of that subject, the prompt and regular collection 
 of the government's revenues would be seriously obstructed and in- 
 terfered with. The statute authorizes no such proceeding, and the 
 Circuit Court can exercise no such jurisdiction. 
 
 The appraised value of the merchandise having been conclusively 
 ascertained in the manner provided by law, and being found to ex- 
 ceed by more than ten per centum the value declared in the entry, 
 the collector, as a matter of mere computation, under the direction 
 and authority of section 7 of said act, properly levied and collected, 
 in addition to the ad valorem duty imposed by law on such mer- 
 chandise, a further sum equal to two per centum of the total ap- 
 praised value for each one per centum that such appraised value 
 exceeded the value declared in the entry. 
 
 Section 7 of said act is substantially similar to section 8 of tho
 
 PASSAVANT V. UNITED STATES. 639 
 
 act of Congress passed on the 30th of July, 1846, 9 Stat. 42, 43, 
 c. 74, which declared that, if the appraised value of imports which 
 have actually been purchased should exceed by ten per centum or 
 more the value declared on the entry, then, in addition to the duties 
 imposed by law on the same, there should be levied, collected and 
 paid a duty of 20 per centum ad valorem on such appraised value. 
 In Sampson v. Peaslee, 20 How. 571, that provision was sustained 
 and enforced, except as to so much of the additional duty of 20 per 
 centum as was levied upon the charges and commissions. The court 
 there say that the ruling of the lower court, in confining the ad- 
 ditional duty to the appraised value of the imports, was the correct 
 interpretation of the section. 
 
 As stated by Mr. Justice Campbell, speaking for the court, in 
 Bartlett v. Kane, 16 How. 263, 274, such additional duties "are the 
 compensation for a violated law, and are designed to operate as 
 checks and restraints upon fraud." They are designed to discourage 
 undervaluation upon imported merchandise and to prevent efforts 
 to escape the legal rates of duty. It is wholly immaterial whether 
 they are called additional duties or penalties. Congress had the 
 power to impose them under either designation or character. When 
 the dutiable value of the merchandise is fully ascertained and is 
 found to be in excess of the value declared in entry by more than 
 ten per centum this extra duty or penalty attaches, and the col- 
 lector is directed and required to levy and collect the same in addi- 
 tion to the ad valorem duty provided by law. 
 
 The importers in this case cannot be heard to complain of this 
 additional duty or penalty, which was a legal incident to the find- 
 ing of a dutiable value in excess of the entry value to the extent 
 provided by the statute. They had full notice of the proceedings 
 before the board of general appraisers upon their appeal to said 
 board, and ample opportunity to be heard on the question of tho 
 market value of the imported goods. It cannot, therefore, be prop- 
 erly said that they have been subjected to penalties without notice 
 or an opportunity to be heard, or been deprived of their property 
 without due process of law. 
 
 The judgment of the Circuit Court dismissing the importers' ap- 
 peal to that court for want of jurisdiction must, therefore, be 
 
 Affirmed. 
 
 Other cases in this collection offering instances of the use of a statutory 
 method of appeal in tax matters are: Commonwealth v. N. Y., L. E. & 
 W Ry Co., 129 Pa. St. 463 : Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 
 196; Holt's Appeal, 5 R. I. 603; Matter of McPherson, 104 N. Y. 306; 
 Matter of Swift. 137 N. Y. 77; Plummer v. Coler, 178 U. S. 115; Super- 
 visors v. C, B. & Q. Ry Co., 44 111. 229.
 
 640 REMEDIES FOR WRONGFUL ACTION 
 
 STATE V. CENTRAL PACIFIC R. R. CO. 
 
 Supreme Court of Nevada. October, 1871. 
 7 Nevada 99. 
 
 By the Court, LEWIS, C. J. : 
 
 The state filed a complaint in the usual statutory form, against 
 the defendant for the recovery of a tax due and unpaid for the year 
 1869. The defendant's answer was demurred to, and the demurrer 
 sustained. A supplemental answer was also filed, and afterwards 
 an amended answer, which was also demurred to, and the demurrer 
 sustained; and upon refusal to amend, judgment was rendered for 
 the state, from which defendant appeals. 
 
 The grounds taken by the demurrer are, first, that the facts relied 
 on in the answer are not alleged with sufficient certainty; and, sec- 
 ondly, admitting the pleading to be sufficient in this particular, still 
 the facts do not constitute a defense. The defense pleaded is fraud 
 in the assessment. 
 
 Here, then is an allegation that the fair or just value of the 
 road, and consequently the value which the law made it the asses- 
 sor's duty to place upon it, was six thousand dollars per mile. But 
 it is charged that, although he knew this to be its fair value, yet 
 contrary to his official judgment, and with intent to defraud the 
 defendant, he fraudulently and craftily set down and assessed the 
 same at fifteen thousand dollars a mile. Can it be said that such 
 facts do not constitute a fraud against which the law will afford 
 relief? Can it be maintained that if the taxpayer has inadvertently 
 neglected to make a statement as required by the assessor, the latter 
 may disregard every known rule for estimating the value of prop- 
 erty for taxation, and impose a valuation upon it which he knows 
 to be exorbitant and unjust? In other words, is the taxpayer under 
 the circumstances completely at the mercy of the assessor? Clearly 
 not. Every man's sense of justice revolts at such a doctrine; nor 
 does the law leave the citizen so utterly without protection. The 
 statute imposes a penalty for a failure or neglect to make out a 
 statement, which is the deprivation of the right to have the assess- 
 ment made by the assessor equalized by the board constituted for 
 that purpose. Yet, he has still the right to insist that the officer, 
 who in such case makes the assessment, shall discharge his duty 
 honestly, and that he shall not knowingly and fraudulently place 
 an excessive valuation on his property. Xotwithstanding the failure
 
 STATE V. CENTRAL PACIFIC K. K, CO. G41 
 
 on the part of the taxpayer to return a list when demanded, it is 
 no less the duty of the assessor to be governed by just rules and the 
 fairest motives in making the assessment of his property. Such 
 failure to comply with the demand of the officer does not place the 
 citizen in the place of an outlaw, beyond the reach of law or the 
 protecting arm of a court of justice. To a certain extent, it ia 
 true, the statute expressly deprives him of a right that of obtain- 
 ing relief before the board of equalization. This, however, is the 
 extent of the penalty for the neglect. This takes from him the 
 right to claim any reduction in the valuation of his property, if the 
 assessment has been honestly made, although it may be exorbitantly 
 overestimated; but does not deprive him of the right to claim relief 
 in a court of justice against an overestimate, fraudulently and pur- 
 posely placed on the property he is deprived of all remedy for the 
 errors of the assessor, but not for his fraudulent misconduct. The 
 statute designates a fraud in the assessment as one of the defenses 
 which may be made to an action for taxes. The facts here alleged 
 certainly constitute fraud in the assessment, and consequently the 
 case is brought directly within the statute. 
 
 It must be borne in mind that we are simply discussing the suffi- 
 ciency of a pleading, and not the real facts in this case, and there- 
 fore do not wish to be understood as intimating that fraud was 
 really practiced. That is a matter which must be established by 
 the defendant, if it exists at all, at the trial on its merits. 
 
 The demurrer is improperly sustained. The order and judgment 
 below must therefore be reversed. 
 
 By GARBER, J. : I dissent. 
 
 Other cases in this collection upon the power of courts in collateral pro- 
 ceedings to declare an assessment void are Bell v. Pierce, 51 N. Y. 12; 
 Boreland v. Boston, 132 Mass. S9; County Commissioners, etc., v. Union 
 Mining Co., 61 M'd. 547; Felsenthal v. Johnson, 104 Illinois, 21; Hersey v. 
 Board, 37 Wis. 75, and Wygatt v. Washburn, 15 N. Y. 316; Palmer v. 
 McMahon, 133 U. S. 660, supra.
 
 (M2 KEMEDIES FOR WRONGFUL ACTION. 
 
 III. EQUITABLE EEMEDIES (INJUNCTION). 
 DOWS V. CITY OF CHICAGO. 
 
 Supreme Court of the United States. December, 1870. 
 11 Watt. 108. 
 
 Appeals from decrees of the Circuit Court of the United States 
 for the Northern District of Illinois in two suits; one original, the 
 other a cross suit. 
 
 A demurrer was interposed to the bills, original and cross. The 
 Circuit Court sustained the demurrers to both, and the complain- 
 ants in the two cases electing to abide by their bills, the court en- 
 tered decrees dismissing the bills. From these decrees appeals were 
 taken. 
 
 Mr. Justice FIELD delivered the opinion of the court. 
 
 According to the view we take of this case, it is unnecessary to 
 consider the force of any of the objections urged by the appellants 
 to the decrees rendered. Assuming the tax to be illegal and void, 
 we do not think any ground is presented by the bill justifying the 
 interposition of a court of equity to enjoin its collection. The 
 illegality of the tax and the threatened sale of the shares for its 
 payment constitute of themselves alone no ground for such inter- 
 position. There must be some special circumstances attending a 
 threatened injury of this kind, distinguishing it from a common 
 trespass, and bringing the case under some recognized head of 
 equity jurisdiction before the preventive remedy of injunction can 
 be invoked. It is upon taxation that the several States chiefly rely 
 to obtain the means to carry on their respective governments, and 
 it is of the utmost importance to all of them that the modes adopted 
 to enforce the taxes levied should be interfered with as little as pos- 
 sible. Any delay in the proceedings of the officers, upon whom the 
 duty is devolved of collecting the taxes, ma} derange the operations 
 of government, and thereby cause serious detriment to the public. 
 
 No court of equity, therefore, will allow its injunction to issue to 
 restrain their action, except where it may be necessary to protect 
 the rights of the citizen whose property is taxed, and he has no 
 adequate remedy by the ordinary processes of the law. It must 
 appear that the enforcement of the tax would lead to a multiplicity 
 of suits, or produce irreparable injury, or where the property is 
 real estate, throw a cloud upon the title of the complainant, before
 
 DOWS V. CITY OF CHICAGO. 643 
 
 the aid of a court of equity can be invoked. In the cases where 
 equity has interfered, in the absence of these circumstances, it will 
 be found, upon examination, that the question of jurisdiction was 
 not raised, or was waived. 
 
 our attention has not been called to any well con- 
 sidered case where a court of equity has interfered by injunction 
 after its jurisdiction was questioned, except upon some one of the 
 special circumstances mentioned. 
 
 The Supreme Court of Illinois is equally clear upon this ques- 
 tion. In the case of Cook County v. The Chicago, Burlington, and 
 Quincy Railroad Company, (35 111. 465) the subject was considered, 
 and the court said that it had been unable to find any decision, in 
 its previous adjudications, asserting a right to bring a bill to re- 
 strain the collection of a tax illegally assessed, without regard to 
 special circumstances. It concludes an examination of its former 
 decisions by stating, that while it was considered settled that a court 
 of equity would never entertain a bill to restrain the collection of a 
 tax, except in cases where the tax was unauthorized by law, or 
 where it was assessed upon property not subject to taxation, it had 
 never held that jurisdiction would be taken in these excepted cases 
 without special circumstances, showing that the collection of taxes 
 would be likely to produce irreparable injury, or cause a multi- 
 plicity of suits. 
 
 Upon principle this must be the case. The equitable powers of 
 the court can only be invoked by the presentation of a case of equi- 
 table cognizance. There can be no such case, at least in the Fed- 
 eral courts, where there is a plain and adequate remedy at law. 
 And except where the special circumstances which we have men- 
 tioned exist, the party of .whom an illegal tax is collected has ordi- 
 narily ample remedy, either by action against the officer making the 
 collection or the body to whom the tax is paid. Here such remedy 
 existed. If the tax was illegal, the plaintiff protesting against its 
 enforcement might have had his action, after it was paid, against 
 the officer or the city to recover back the money, or he might have 
 prosecuted either for his damages. No irreparable injurj would" 
 have followed to him from its collection. Nor would he have been 
 compelled to resort to a multiplicity of suits to determine his rights. 
 His entire claim might have been embraced in a single action. 
 
 We see no ground for the interposition of a court of equity
 
 644 REMEDIES FOR WRONGFUL ACTION. 
 
 which would not equally justify such interference in any case of 
 threatened invasion of real or personal property. 
 
 The cross-bill filed by the bank presents different features. That 
 institution insists that if it paid the tax levied upon the shares of 
 all its numerous stockholders out of the dividends upon their share.- 
 in its hands, which it is required to do by the law of the State, or 
 if the shares were sold, it would be subjected to a multiplicity of 
 suits by the shareholders, and were it an original bill the jurisdic- 
 tion of the court might be sustained on that ground. But as a 
 cross-bill it must follow the fate of the original bill. 
 
 Decrees affirmed in both suits. 
 
 SAGE AND OTHERS, RESPONDENTS, V. THE TOWN OF 
 FIFIELD AND OTHERS, APPELLANTS. 
 
 Supreme Court of Wisconsin. January, 1887. 
 68 Wisconsin 546. 
 
 TAYLOR, J. The appellants insist that the circuit court erred in 
 refusing to dissolve the temporary injunction (1) because the com- 
 plaint does not state facts which, if admitted to be true, would jus- 
 tify the court in granting the relief prayed for in the complaint, 
 even if it were admitted that the electors of said town had no au- 
 thority to vote a road tax upon the taxable property of said town 
 exceeding the sum of $2,000; 
 
 Under the law requiring the highway taxes to be collected in 
 money as other taxes are collected, it seems to us very clear that 
 the duty of the supervisors as to making out warrants for the col- 
 lection of such taxes is clearly abrogated; and if any duty remains 
 on them as a board in fixing the amount of taxes to be raised for 
 that purpose in the town, it is simply their duty in the absence of 
 any vote of the electors on the subject, to declare the number of 
 mills which shall be assessed on the valuation of the property of 
 said town, and then the amount is to be carried out by the clerk 
 upon the general assessment roll, and collected with the other taxes. 
 In the case at bar the electors have indicated that all the highway 
 taxes in said town for the year shall be $5,000. That sum the 
 electors had the power to vote, with or without the approval of the 
 board of supervisors, as the law gives the electors the right to direct
 
 SNYDER V. MARKS. 645 
 
 the supervisors to raise fifteen mills on the dollar valuation, pro- 
 vided such fifteen mills does not exceed the sum of $2,000 and 
 seven mills on such valuation. In this case the $5,000 does not ex- 
 ceed such sum; and if it be technically necessary that the board 
 should, after the vote of the electors, direct so many mills on the 
 valuation to be raised as would make the sum of the $5,000 voted 
 by the electors, they could do that by directing that amount to be 
 apportioned upon the assessment roll; and, according to their an- 
 swer, that was all that was intended to be done in this case. 
 
 There is no equity, therefore, in staying the officers of the town 
 in collecting a tax which the law clearly authorizes, even though 
 some of the formalities of the law may not have been complied 
 with. 
 
 By the Court. The order of the circuit court is reversed, and 
 the cause is remanded with directions to that court to dissolve the 
 injunction. 
 
 SNYDER V. MARKS. 
 
 Supreme Court of the United States. October, 188S. 
 109 United States 189. 
 
 This suit was brought in a State court of Louisiana, by the ap- 
 pellant, a tobacco manufacturer, against the appellee, a collector of 
 internal revenue, to obtain an injunction restraining the appellee 
 from seizing and selling the property of the appellant to pay two 
 assessments of taxes against him, made by the commissioner of in- 
 ternal revenue, and to have the assessments declared void. An in- 
 junction having been granted ex parte, the appellee removed the 
 suit, by certiorari, into the Circuit Court of the United States for 
 the District of Louisiana, on the allegation that it wap brought on 
 account of acts done by the appellee, as such collector, under the 
 authority of the internal revenue laws of the United States, and to 
 enjoin him, in his official capacity, from enforcing the payment of 
 assessments made against the appellant, under authority of such 
 laws, by executing warrants of distraint, as authorized by such 
 laws. 
 
 After the removal of the suit the appellant, under an order to 
 reform his pleading, filed a bill in equity in the circuit court. 
 
 The appellee demurred to the bill for want of equity, and because
 
 646 REMEDIES FOR WRONGFUL ACTION. 
 
 no suit could be maintained in any court to restrain the collection 
 of any tax of the United States, and the appellant could not he per- 
 mitted in this suit to attack the validity or regularity of the assess- 
 ments or restrain the execution of a warrant issued thereunder. 
 The circuit court sustained the demurrer and dismissed the bill. To 
 review its decree this appeal is brought. 
 
 Mr. Justice BLATCHFORD delivered the opinion of the court. After 
 reciting the facts he stated: 
 
 The sole object of this suit is to restrain the collection of a tax 
 which purports to have been assessed under the internal revenue laws. 
 A decree adjudging the tax to be void as against the appellant i> 
 sought for only as preliminary to relief by injunction, and would 
 be futile for any purpose of this suit unless followed by an injunc- 
 tion. 
 
 The internal revenue act of July 13th, 1866, c. 184, 14 Star. 
 152, provided, 19, as follows: "No suit shall be maintained in 
 any court for the recovery of any tax alleged to have been 
 erroneously or illegally assessed or collected, until appeal shall have 
 been duly made to the commissioner of internal revenue according 
 to the provisions of law in that regard, and the regulations of the 
 secretary of the treasury, established in pursuance thereof, and a 
 decision of said commissioner shall be had thereon, unless such suit 
 shall be brought within six months from the time of said decision, or 
 within six months from the time this act takes effect: Provided, 
 That if said decision shall be delayed more than six months from 
 the date of such appeal, then said suit may be brought at any time 
 within twelve months from the date of such appeal." By 10 of 
 the act of March 3d, 1867, c. 169, 14 Stat. 475, it was enacted 
 that 19 of the said act of 1866 be amended "by adding the fol- 
 lowing thereto:" "And no suit for the purpose of restraining the 
 assessment or collection of tax shall be maintained in any court." 
 In the Revised Statutes this amendment of and addition to ' 19 
 of the act of 1866 is made a section by itself, 3224, separated 
 from that of which it is an amendment and to which it is an addi- 
 tion, and reads thus: "No suit for the purpose of restraining the 
 assessment or collection of any tax shall be maintained in any 
 court." The word "any" was inserted by the revisers. This enact- 
 ment in 3224 has a no more restricted meaning than it had when 
 after the act of 1867, it formed a part of 19 of the act of 1866, 
 by being added thereto. The first part of 19 related to a suit to 
 recover back money paid for a "tax alleged to have been erroneously 
 or illegally assessed or collected," and the section, after thus pro-
 
 SNYDER V. MARKS. 647 
 
 viding for the circumstances under which a suit might be brought, 
 proceeded, when amended, to say, that "no suit for the purpose of 
 restraining the assessment or collection of tax shall be maintained 
 in any court." The addition of 1867 was in pari materia with the 
 previous part of the section and related to the same subject-matter. 
 The "tax'' spoken of in the first part of the section was called a 
 "tax" sub modo, but was characterized "as a "tax alleged to have 
 been erroneously or illegally assessed or collected." Hence, when, 
 on the addition to the section, a "tax" was spoken of, it meant that 
 which is in a condition to be collected as a tax, and is claimed by 
 the proper public officers to be a tax, although on the other side it 
 is alleged to have been erroneously or illegally assessed. It has 
 no other meaning in 3224. There is, therefore, no force in thy 
 suggestion that 3224, in speaking of a "tax/' means only a legal 
 tax; and that an illegal tax is not a tax, and so does not fall 
 within the inhibition of the statute, and the collection of it may 
 be restrained. 
 
 The statute clearly applies to the present suit, and forbids the 
 granting of relief by injunction. It is distinctly alleged in the 
 bill, that the appellee claims that the appellant owes to the United 
 States the amounts assessed for taxes, both the tax assessed against 
 the appellant and that assessed against Irwin & Snyder. The bill 
 also shows sufficiently that the assessment had relation to the busi- 
 ness of the appellant as a manufacturer of tobacco, and to his lia- 
 bility to tax, under the internal revenue laws, in respect to such 
 business. The instructions of the internal revenue department in 
 regard to the preparation of assessment lists provided, that where 
 an assessment was reported against a manufacturer of tobacco for 
 having removed any taxable articles from his manufactory without 
 the use of the proper stamp, or for not having duly paid such tax 
 by stamp at the time and in the manner provided by law, the entry 
 in the column headed "article or occupation" should be "Stamp 
 Tax. Tob.," with liberty to use the initials "S. T." as an abbrevia- 
 tion for "stamp tax." The instructions stated that "Tob." is an 
 abbreviation for "tobacco." Resort may be had to these instruc- 
 tions to show the meaning of the abbreviations in the assessment 
 list. Read by the light of the instructions, the list shows a tax 
 which the appellant might be liable to pay, and one which the com- 
 missioner had general jurisdiction to assess against him. 
 
 The inhibition of 3224 applies to all assessments of taxes, made 
 under color of their offices, by internal revenue officers charged with 
 general jurisdiction of the subject of assessing taxes against tobacco
 
 648 REMEDIES FOR WRONGFUL ACTION". 
 
 manufacturers. The remedy of a suit to recover back the tax after 
 it is paid is provided by statute, and a suit to restrain its collection 
 is forbidden. The remedy so given is exclusive, and no other rem- 
 edy can be substituted for it. Such has been the current of de- 
 cisions in the circuit courts of the United States, and we are satis- 
 fied it is a correct view of the law. Rowland v. Soule; Deady, 413 ; 
 Pullman v. Kinsinger, 2 Abbott U. S. 94; Bobbins v. Freeland, 14 
 Int. Rev. Rec. 28; Delaware E. R. Co. v. Pretty man, IT id. 99; 
 United States v. Black, 11 Blatchford, 538, 543; Kissinger v. 
 Bean, 7 Bissell, 60; United States v. Pacific Railroad, 4 Dillon, 66, 
 69; Alkan v. Bean, 23 Int. Rev. Rec. 351; Kensett v. Stivers, 18 
 Blatchford, 397. In Cheatham v. United States, 92 U. S. 85, 88, 
 and again in State Railroad Tax Cases, 92 U. S. 575, 613, it was 
 said by this court, that the system prescribed by the United States 
 in regard to both customs duties and internal revenue taxes of 
 stringent measures, not judicial, to collect them, with appeals to 
 specific tribunals, and suits to recover back moneys illegally exacted 
 was a system of corrective justice intended to be complete, and en- 
 acted under the right belonging to the government to prescribe the 
 conditions on which it would subject itself to the judgment of the 
 courts in the collection of its revenues. In the exercise of that 
 right, it declares, by 3224, that its officers shall not be enjoined 
 from collecting a tax claimed to have been unjustly assessed, when 
 those officers, in the course of general jurisdiction over the subject 
 matter in question, have made the assignment and claim that it is 
 valid. 
 
 The decree of the circuit court is affirmed. 
 
 This statute does not prevent an injunction by a stockholder of a corporation 
 to restrain the corporation from paying an illegal or unconstitutional tax. 
 Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429. 
 
 Other cases in this collection illustrative of the use of the injunction 
 in tax matters are : Belo v. Commissioners, 82 N. C. 415 ; Brown v. Houston, 
 114 U. S. 622; City of Newton v. Atchinson, 31 Kan. 151; County Com- 
 missioner v. Union Mining Co., 61 M'd., 547; Cypress Pond Draining Co. v. 
 Hooper, 2 Metcalfe (Ky.) 350; FelsenthaS v. Johnson, 104 111. 21; Gilman 
 v. Sheboygan, 2 Black (U. S.) 510; Hersey v. Board, 37 Wis. 75; Home of 
 the Friendless v. Rouse, 8 Wallace (U. S.) 430; Kirtland v. Hotchkiss, 
 
 100 U. S. 491; Lowell v. Boston, 111 Mass. 454; McMillen v. Anderson, 95 
 U. S. 37; New Orleans v. Stempel, 175 U. S. 309; Pelton v. National Bank, 
 
 101 U. S. 143; Rees v. Watertown, 19 Wallace 107; Savings, etc., Society 
 v. Multnomah Co., 169 U. S. 421; Snell v. Fort Dodge, 45 Iowa 564; State 
 Tonnage Tax Cases (second case), 12 Wallace (U. S.) 204; Tappan v. 
 Merchants' National Bank, 19 Wallace 490; Washington Avenue, 69 Pa. St 
 352; Youngblood v. Sexton, 32 Mich. 406.
 
 SNYDEB V. MARKS. 649 
 
 Other cases of equitable relief are Albany Brewing Co. v. Meriden, 48 
 Conn. 243, and Stater v. Maxwell, 6 Wallace 268, both cases of bills to set 
 aside a lien. 
 
 IV. ACTIONS AGAINST TAX OFFICERS. 
 
 Cases in this collection illustrative of the actions which may be 
 brought against tax officers are: Brackett v. Vining, 49 Me., 356; 
 Gordon v. Comes, 47 X. Y. 608; Mygatt v. Washburn, 15 N. Y. 
 316; Price v. Mott, 52 Pa. St. 315; Shaw v. Peckett, 26 Vt. 482; 
 Sheldon v. Van Buskirk, 2 X. Y. 473; Van Voorhes v. Budd, 39 
 Barbour (N. Y.) 479. 
 
 V. REPLEVIN. 
 
 Cases in this collection illustrative of the action of replevin in tax 
 cases are: Carpenter v. Snelling, 97 Mass. 452; and Daniels v. Nel- 
 son, 41 Vt. 161. 
 
 VI. HABEAS CORPUS. 
 
 Cases in this collection illustrative of the use of the habeas corpus 
 in tax cases are: Ex parte City Council of Montgomery, 64 Ala. 
 463 and Commonwealth v. Byrne, 20 Grattan (Va.) 165. 
 
 VII. ACTION TO RECOVER POSSESSION OF PROPERTY SOLD FOR 
 NON-PAYMENT OF TAXES. 
 
 Cases in this collection illustrative of the action to recover prop- 
 erty sold for non-payment of taxes are: Bennett v. Hunter, 9 Wal- 
 lace (U. S.) 326; Bosworth v. Danzien, 25 Cal. 297; Brown v. 
 Hays, 66 Pa. St. 229; Brown v. Veazie, 25 Me. 359; Covington v. 
 Kentucky, 173 U. S. 231; Cruger v. Dougherty, 43 N. Y. 107; 
 Donald v. McKinnon, 17 Fla. 746; King v. Mullins, 171 U. S. 
 404; Smith v. Messer, 17 N. H. 420; Williams v. Peyton's Lessee, 
 4 Wheaton, 77 ; Woodside v. Wilson, 32 Pa. St. 52. 
 
 VIII. PROHIBITION. 
 
 Cases of the use of the writ of prohibition in tax matters to be 
 found in this collection are: People v. Board, 59 N. Y. 92, used 
 here to prevent the revocation of a tax license, and Weston v. 
 Charleston, 2 Peters, 449, to restrain levy of an illegal tax.
 
 INDEX 
 
 [BETEBENCES ABE TO PAGES.] 
 ACTION 
 
 to recover property sold for taxes, 649. 
 APPOINTMENT, POWER OF 
 
 succession of one taking under, may be taxed, 184. 
 ARREST 
 
 for non-payment of tax proper, 497. 
 
 even when decreed by administrative officer, 499. 
 
 ASSESSMENT, 334. 
 
 by Board of Equalization, 471. 
 to deceased person not good, 429. 
 description of land in, 442. 
 divison of parcel in, 440. 
 effect of fraud on, 640. 
 
 effect of mistake in description of land on, 444. 
 effect on of omission of taxable property, 461. 
 effect of statement of tax-payer on, 339. 
 of express companies, 394. 
 when franchise may not be included, 452. 
 hearing necessary to valid, 179, 334. 
 income not a criterion in land tax, 450. 
 by initials. 434. 
 method of valuation, 447. 
 mistake in name of owner, 433. 
 must be made by proper person, 337. 
 a necessary prerequisite to legal taxation, 334. 
 not made when succession is contingent, 343. 
 once made may not be changed, 347. 
 
 penalties for failure of tax-payer to list property, 318, 142. 
 of property to owner, 427. 
 of Pullman Car Companies, 389. 
 remedies against, 622. 
 of separate parcels, when necessary, 436. 
 statutory review of. 630. 
 to surname, 436. 
 time of making, 345. 
 unit of value rule, 389, 394. 
 to unknown owners, 432. 
 use of tax map numbers, 444. 
 without jurisdiction makes assessors liable, 345. 
 
 651
 
 652 INDEX. 
 
 [REFERENCES ABB TO PAGES.] 
 
 ASSESSORS 
 
 liability of, 345. 
 
 not liable for mistake when having jurisdiction, 366. 
 
 AUCTION SALES 
 
 of imports, state taxation of, 145. 
 BANK STOCK, 418. 
 BENEFITS AND TAXATION, 18. 
 
 BILLS OF LADING 
 
 foreign, taxes on, taxes on exports, 178. 
 
 BOARD OF EQUALZATION 
 
 powers of. 465, 471. 
 BOARD OF GENERAL APPRAISERS 
 
 powers of, 634. 
 BUSINESS 
 
 taxes on, 549. 
 
 See PRIVILEGES. 
 CERT1ORARI, 622. 
 
 what may be reviewed on, 622, 626. 
 CHOSES IN ACTION 
 
 taxation of; see MORTGAGES, 268. 
 CITIZENS 
 
 corporations are not, under constitution, 196. 
 CLASSIFICATION 
 
 not violative of equal protection of laws, 196. 
 COLLECTION OF TAX, 474. 
 
 by imprisonment, 31. 
 
 by suit, 5, 7. 
 
 COLLECTION WARRANT. 477. 
 
 COMMERCE See FOREIGN COMMERCE; see INTERSTATE COMMEBCB. 
 CONSTITUTIONAL LIMITATIONS 
 
 of taxing power, 56. 
 
 direct taxes must be apportioned among states, 202. 
 
 equality and uniformity, 282. 
 
 purpose of tax must be public, 231. 
 
 resulting from theory of federal government, 56. 
 
 state taxation of interstate and foreign commerce, 98. 
 
 tonnage taxes, 165. 
 
 taxes must be uniform throughout United States, 214. 
 CONSTRUCTION OF TAX LAWS, 307. 
 
 CONTRACT 
 
 grant to municipal corporation of power to tax not a, 38. 
 
 taxes not, 2. 
 CORPORATE STOCK 
 
 National bank stock, 418. 
 
 taxable when corporations are taxed as well, 417. 
 
 taxation of, 410.
 
 INDEX. 663 
 
 [REFERENCES ARE TO PAGES.] 
 CORPORATIONS 
 
 not citizens under constitution, 196. 
 
 domicil of, when determined by charter, 361. 
 
 foreign, taxation of, 375. 
 
 foreign engaged in interstate commerce not taxable by states except 
 on property, 401. 
 
 names of in assessment, 434. 
 
 payment by of taxes on holders of bonds of, 89, 263, 371. ' 
 
 are persons under constitution, 179, 189. 
 
 shareholders in may be taxed when corporations are taxed also, 417. 
 
 taxation of franchises, 69, 123, 452, 460. 
 
 what are, 364. 
 
 when doing business in the state, 36S. 
 
 where taxed, 359. 
 COURTS 
 
 may not levy taxes, 23. 
 
 control of over power to tax, 20, 22. 
 COURTS AND POWER TO TAX, 17. 
 CURING DEFECTS 
 
 in tax proceedings, 320. 
 
 by action of courts, 331. 
 
 by administrative action, 328. 
 
 by legislative action, 320, 326. 
 DECEASED PERSON 
 
 assessment to, 429. 
 DE FACTO OFFICERS, 304. 
 DELEGATION OF POWER TO TAX, 27. 
 
 DIRECT TAXES 
 
 what are, 202, 206. 
 DISTRESS AND SALE, 474. 
 DISTRICTS 
 
 for taxes fixed by legislature, 18. 
 DOMICIL, 351. 
 
 cannot be lost before new one is obtained, 351. 
 
 of corporations, 359. 
 
 how determined, 354. 
 
 of married women, 354. 
 DRUMMERS 
 
 states may not tax interstate, 93. 
 
 DUE PROCESS OF LAW 
 
 prevents making tax deeds conclusive, 320. 
 
 requires opportunity to be heard on assessment, 17t. 
 ENFORCING OFFICIAL DUTY, 603. 
 EQUAL PROTECTION OF LAWS 
 
 is assured to corporations, 189. 
 
 doee not prevent classification, 196.
 
 654 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 EQUALITY AND UNIFORMITY, 11. 
 
 of taxation prevents arbitrary selection of tax-payers, 282. 
 
 requires taxation of all property in district, 284. 
 
 provision for applicable only to taxes on property, 303. 
 
 requires uniformity in assessment, 293. 
 EQUALIZATION, 465. 
 EQUITABLE CONVERSION, 272. 
 EXEMPTION FROM TAXATION 
 
 how construed, 302. 
 
 power of administrative officers to exempt, 300. 
 
 not a contract, 43, except when made for a consideration, 45, or when 
 contained in a charter of a private corporation, 48, but not when 
 contained in a charter of a municipal corporation, 51. 
 
 power of legislature to exempt, 299. 
 
 when a contract, 43. 
 
 EXPORTS 
 
 taxes on unconstitutional, 173. 
 
 taxes on foreign bills of lading, taxes on, 173. 
 
 what are, 113. 
 EXPRESS COMPANIES 
 
 state taxation of, 110. 
 FEDERAL GOVERNMENT 
 
 bonds of, taxation of by states, 64; instrumentalities of may not be 
 taxed by states, 56. 
 
 may not tax instrumentalities of state governments, 60. 
 
 may not tax property of municipal corporations, 89. 
 
 may not tax property of states, 89. 
 
 property of not taxable by states, 85. 
 
 salaries of officers of may not be taxed by states, 61; effect of 
 
 theory of on power to tax, 55. 
 FOREIGN COMMERCE 
 
 exports, 113. 
 
 original packages, 133. 
 
 states may not regulate, 162. 
 
 what are original packages, 150. 
 
 state taxation of auction sales of imports, 145. 
 
 state taxation of imports, 133. 
 
 state taxation of receipts from, 125. 
 FORFEITURES, 482, 492. 
 FOREIGN CORPORATIONS 
 
 holders of stock of, taxable, 418. 
 
 taxation of, 375, 379. 
 FRANCHISE TAXES, 69, 126, 130. 
 FRANCHISE 
 
 when not to be included in assessment, 452, 460. 
 FRAUD IN LAW, 478.
 
 INDEX. 655 
 
 [REFERENCES ABE TO PAGES.] 
 FREIGHT 
 
 Interstate not taxable by states, 98. 
 HABEAS CORPUS, 649. 
 _ HEARING ON ASSESSMENT 
 
 must be given, 179. 
 IMPORTS 
 
 what are, 153. 
 
 Se0 FOREIGN COMMERCE. 
 IMPRISONMENT 
 
 for non-payment of taxes, 31. 
 INHERITANCE TAX See SUCCESSION TAX. . 
 INJUNCTIONS 
 
 in tax matters, 172, 642. 
 
 not granted against federal tax officers, 645. 
 
 when courts will issue in tax matters, 340. 
 
 use of in tax matters, 447. 
 " INTERNAL REVENUE TAXES, 539. 
 INTERSTATE COMMERCE 
 
 corporations engaged in may be taxed by states for right to do 
 state business, 110, 130. 
 
 discrimination against products of other states, 117. 
 
 express companies, 110. 
 
 goods coming* from one state into another, not imports, 153. 
 
 original packages, 113. 
 
 Pullman Car Companies, 108. 
 
 may be regulated only by Congress, 94. 
 INTERSTATE COMMERCE 
 
 states may not tax, 93. 
 
 state taxation of railways, 98, 123. 
 
 right to engage in not taxable by states, 104. 
 
 state taxation under police power, 120. 
 
 state taxation of railway gross receipts, 123. 
 
 telegraph companies, 104, 120, 130. 
 
 what is? 100. 
 ( INTEREST 
 
 taxes do not bear, S. 
 1 IN TRANSITU 
 
 property not taxable by itateg, 98. 
 
 | JUDGMENTS 
 
 taxes not, 2. 
 
 | JURISDICTION 
 
 property to be taxed must be within, 2S7. 
 I LAND 
 
 sale of must be fair. 509. 
 
 sale of for unpaid taxes, 507. 
 
 must be provided by statute, 507.
 
 656 INDEX. 
 
 [REFERENCES ABE TO PAGES.] 
 
 LAWYERS 
 
 taxation of, 555. 
 LEGISLATURE 
 
 has power to tax, 18. 
 
 may choose tax districts, 18. 
 
 power of to compel levy of local taxes, 29. 
 
 power of, to tax, restrained by constitution, 29. 
 
 power of, to exempt from taxes, 299. 
 LIABILITY 
 
 of tax officers, 649. 
 LICENSES 
 
 taxation of state, by municipalities, 555. 
 
 power to issue, does not authorize taxation, 543, 546, 548; revoca- 
 tion of, 562, 564. 
 
 LIENS, 482, 489. 
 
 over against bona fide purchasers, 482; relate back, 484. 
 LISTING OF PERSONS See ASSESSMENT, 334. 
 LOCAL ASSESSMENTS AND TAXES, 13. 
 LOCAL ASSESSMENTS See SPECIAL ASSESSMENT. 
 LOCAL TAXATION 
 
 local districts may be obliged by legislature to levy taxes, 254. 
 
 under federal government, 228. 
 MANDAMUS 
 
 use of to force exercise of power to tax, 27. 
 
 to compel exercise of power to tax, 40. 
 MANUFACTURING ESTABLISHMENTS 
 
 taxes to aid improper, 231. 
 METHOD OF VALUATION, 447. 
 MONEY HAD AND RECEIVED 
 
 action for to recover taxes improperly paid, 165. 
 MORAL OBLIGATION 
 
 satisfaction of, a public purpose of taxation, 243. 
 MORTGAGES 
 
 taxation of, 259. 
 
 may be taxed where recorded, 259. 
 
 may be taxed where the papers are kept, 265. 
 
 situs of, 387. 
 
 may be taxed in two states at same time, 268. 
 MUNICIPAL BONDS 
 
 federal taxation of not proper, 83. 
 
 MUNICIPAL CORPORATION 
 
 delegation to, of power to tax, 30. 
 
 grant of power to tax not a contract, 38. 
 
 may levy only such taxes as they may have been authorized by 
 
 legislature to levy, 33. 
 may levy taxes for authorized purposes, 34.
 
 INDEX. 657 
 
 [REFERENCES ARE TO PAGES.] 
 MUNICIPAL CORPORATION Continued. 
 
 mandamus to compel exercise of power to tax by, 40. 
 
 property of may not be taxed by federal government, 89. 
 
 must levy taxes in the way prescribed by law, 36. 
 NATIONAL BANK STOCK, 418. 
 
 may not be taxed more than other moneyed capital, 422, 426. 
 NATURE OF TAXES. 1. 
 
 NON-RESIDENT HOLDERS OF CORPORATE BONDS, 263. 
 OFFICERS 
 
 federal, salaries of may not be taxed by states, 61. 
 
 state, salaries of may not be taxed by federal government, 61. 
 OFFICIAL ACTION 
 
 in matters of taxation, 304. 
 
 presumed to be proper, 305. 
 
 official duty, enforcement of, 603. 
 OCCUPATIONS 
 
 taxes on, 31. 
 
 See BUSINESS, PRIVILEGE. 
 ORIGINAL PACKAGES 
 
 imported from foreign countries, 133. 
 
 imported from other states, 113. 
 
 what are, 150. 
 OWNER 
 
 assessment of property to, 427. 
 
 PARCELS 
 
 assessment of, 436. 
 PENALTIES, 505. 
 
 for failure of taxpayer to make statement, 318, 342. 
 PERSONS 
 
 corporations are, under constitution, 179, 189. 
 POLICE AND TAXING POWER, 529. 
 POWER TO TAX 
 
 alienation of, 43. 
 
 belongs to state, 11. 
 
 delegation of to private corporation, 27. 
 
 to municipal corporation, 30. 
 
 constitutional limitations of, 56. 
 
 not controlled! by courts, 20, 22. 
 
 grant of, to municipal corporation, not a contract, 38, except when 
 necessary to protect private rights, 40. 
 
 not a judicial power, 17, 23. 
 
 a legislative power, 11, 15. 
 
 mandamus to compel exercise of, 27, 40. 
 
 nature of, 10. 
 
 Dower to destroy, 21. 
 
 unlimited, 20; except by constitution, 11, 15. 
 POWER OF APPORTIONING TAXES, 15. 
 
 41
 
 658 INDEX. 
 
 [REFERENCES ABE TO 
 PRIVATE CORPORATION 
 
 delegation of power to tax to, 27. 
 PRIVATE PURPOSE OF TAXATION 
 
 Improper, 231. 
 PRIVILEGE 
 
 local taxation of, 543. 
 
 what is, 534, 537. 
 PROGRESSIVE TAXES 
 
 under federal government, 2. 4. 
 
 proper, 196, 202. 
 
 improper in some states, 303. 
 PROHIBITION, 649. 
 PROPERTY 
 
 In transitu not taxable, 98. 
 
 may not be taken without due process of law, 8t. 
 PUBLIC PURPOSE 
 
 distinction of from private purpose, 239. 
 
 satisfaction of moral obligation, a, 243. 
 PULLMAN CARS 
 
 situs of, 389. 
 PULLMAN CAR COMPANIES 
 
 state taxation of, 108. 
 PURPOSE OF TAX 
 
 must be public, 230. 
 
 relation to district taxed, 251. 
 
 RAILWAYS 
 
 state taxation of, 98, 100. 
 taxation in aid of, proper, 2S8. 
 
 RAILWAY GROSS RECEIPTS 
 state taxation of, 123. 
 
 REASSESSMENT, 336, 347. 
 
 REDEMPTION OF LAND, 514. 
 
 may be made by agent of owner, 516. 
 statutes providing liberally construed, 514. 
 
 REFUNDING TAXES, 604. 
 
 suits for may be brought when not prohibited by statute, 04. 
 suits for may be brought in U. S. courts of claims, 619. 
 suits for under the federal law, 616. 
 suits for when may be brought, 611. 
 
 REPLEVIN, 649. 
 
 REVOCATION OF TAX LICENSE, 562. 
 SALARIES OF OFFICERS See OFFICERS. 
 SALE OF LAND 
 
 for unpaid taxes, 507.
 
 INDEX. 659 
 
 [REFERENCES ARE TO PAGES.] 
 SALE OF PROPERTY, 478. 
 
 of other than taxpayer, 478, 480. 
 requirements of law must be observed in, 481. 
 
 SALES 
 
 taxes on, proper, 176. 
 
 SCHOOLS 
 
 under private management, taxes in aid of, improper, 2X8. 
 
 SITUS 
 
 of choses in action, 379, 387. 
 
 of National Bank stock, 418. 
 
 in case of personalty may be fixed by legislature, 201. 
 
 of Pullman cars, 389. 
 
 of real property, 272. 
 
 SPECIAL ASSESSMENT, 566. 
 
 discretion of legislature, 566, 569, 573. 
 
 methods of assessment, 577. 
 
 foot frontage rule, 577, 581. 
 
 under police power, 590. 
 
 powers of local authorities to impose, 687. 
 
 not proper for current expenses, 592. 
 
 necessity for a matter of legislative discretion, 514. 
 
 regularity of proceedings in, 595, 597, 600. 
 
 STATES 
 
 may not tax interstate commerce, 93. 
 
 may not tax property of federal government, 85. 
 
 STATE BONDS 
 
 federal taxation of not proper, 84. 
 
 STATE GOVERNMENT 
 
 instrumentalities of may not be taxed by federal government, 60. 
 salaries of officers of may not be taxed by federal government, 61. 
 
 STATE PROPERTY 
 
 not taxable by United States, 89. 
 SUCCESSION TAX, 76. 
 
 appraisement under final, 349. 
 
 of contingent remainders, 345. 
 
 not payable when amount of succession is contingent, S42. 
 
 doctrine of equitable conversion as applicable to, 272. 
 
 may be imposed on one taking under power of appointment, 184. 
 
 imposed on successions to property out of state where decedent's 
 domicil was in state, 275. 
 
 Imposed on successions to property within the state, 278. 
 
 may be progressive, 196 T 202. 
 
 progressive under federal government, 214. 
 
 progressive, improper in some states, 303. 
 
 taxation of remaindermen, 289.
 
 660 INDEX. 
 
 [REFERENCES ARE TO PAGES.] 
 SUITS 
 
 for collection of taxes, 5, 7. 
 
 to recover taxes against federal government, 228. 
 
 TANGIBLE PERSONAL PROPERTY 
 situs of, 379. 
 
 TAXATION 
 
 of business and privilege, 529. 
 
 of corporate stock, 410. 
 
 for private purpose improper, 231. 
 
 TAXES 
 
 power to apportion, 15. 
 
 not contracts, 2. 
 
 not debts, 1. 
 
 do not bear interest, 3. 
 
 not judgments, 2. 
 
 and local assessments, 13. 
 
 on occupations, 31; see BUSINESS; see PRIVILEGES. 
 
 may not be set off, 1. 
 
 nature of, 1. 
 
 suits for collection of, 5, 7. 
 
 TAX DEED 
 
 not conclusive evidence of regularity of sale, 511. 
 
 effect of, 522. 
 
 when, passes all title to land sold for taxes, 522, 525. 
 
 may not be made conclusive evidence, 320. 
 
 may be made prima facie evidence, 320. 
 
 when prima facie evidence of regularity of sale, 524. 
 
 TAX DOMICIL, 351. 
 
 TAX LAWS 
 
 construction of, 307. 
 
 when directory, 314. 
 
 when mandatory, 310. 
 
 not retroactive, 316. 
 
 may be made retroactive, 318. 
 
 TAXING POWER See POWEB TO TAX. 
 
 TELEGRAPH COMPANIES 
 
 state taxation of, 104, 120, 130. 
 
 TONNAGE TAXES 
 
 states may not levy, 165. 
 UNIFORMITY 
 
 of taxes throughout United States. 214. 
 UNIFORMITY CLAUSE 
 
 does not affect territory appurtenant, 280. 
 UNIT OF VALUE 
 
 rule, 389. 394.
 
 INDEX. 661 
 
 [HEFERENCES ARE TO PAQIS.] 
 UNITED STATES BONDS 
 
 may not be taxed by states, 56, 66. 
 
 tax on succession of, 75. 
 UNKNOWN OWNERS 
 
 assessment to. 432. 
 
 VALUATION OF PROPERTY See ASSESSMENT, 324. 
 VESTED RIGHTS 
 
 what are, 184.
 
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