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laws of the state of Ohio did not furnish due process of law, "upon the ground that the assessment against the plaintiff's abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation;" the court, in other words, held in that case, in effect, that the determination by the legislature of the class of lands specially benefited by the improvement is not conclusive upon the courts nor upon the owner, and that such action of the legislature may be reviewed by the courts, upon the ground that it acted unjustly or without appropriate and adequate investigation and reason. That decision, it would seem, is not in harmony with other decisions of the court previously 38 and subsequently 39 rendered upon the question involved.

§ 294. Same-Same-Taxing non-resident mortgagee's interest in the mortgaged land.-A state statute which authorizes the amount of a debt secured by a mortgage on land to be deducted from the mortgagor's interest in the land in assessing it for taxes, and requires the mortgage and the debt to be taxed as real estate against the mortgagee to the extent of his interest in the land as represented by the mortgage, does not deprive a mortgagee, who resides in another state and has the mortgage in his possession there, of his property without due process of law.. 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 mortgagor the remaining interest in the land. And the state may, for the purposes of

38 Spencer v. Merchant, 125 U. S. 345 (31:763); Paulsen v. Portland, 149 U. S. 30, 40 (37:637); Bauman v. Ross, 167 U. S. 548 (42:270); Hagar v. Reclamation District, 111 U. S. 701 (28:569); Parsons v. District of Columbia, 170 U. S. 45 (42:943).

39 Webster v. Fargo, 181 U. S. 394 (45:912); Shumate v. Heman,

187 U. S. 402 (45:922); Farrell v. West Chicago Park Com'rs, 181 U. S. 404 (45:924); French v. Barber Asphalt Paving Co., 181 U. S. 324, 370 (45:879); Detroit v. Parker, 181 U. S. 399 (45:917); Tonawanda v. Lyon, 181 U. S. 389 (45: 908); Cass Farm Co. v. Detroit, 181 U. S. 396 (45:914).

taxation, either treat the mortgage debt as personal property to be taxed like other choses in action, to the creditor at his domicile; or treat the mortgagee's interest in the land as real estate, to be taxed to him, like other real property, at its situs.40 § 295. Same-Same-Classification for taxation.—It is not the purpose of the fourteenth amendment to prevent the states from classifying the subjects of legislation, and making different regulations as to the property of different individuals or different classes of individuals differently situated; nor to compel the states to adopt any iron rule in regard to taxation; nor to prevent the states from classifying property for taxation at different rates and by different modes of assessment. The provisions of the federal constitution are satisfied if all persons similarly situated are treated alike in privileges conferred or liabilities imposed; it is enough that there is no discrimination in favor of one as against another of the same class. 41

§ 296. Same Same-Corporations-Corporations are persons within the meaning of the due process clause of the fourteenth amendment to the federal constitution."

42

§ 297. Same-Same-State constitution and laws on taxation must be considered together.-In ascertaining and determining the constitutional validity of state tax laws under the due process clause of the fourteenth amendment, the supreme court of the United States will look to and consider and construe together all the state constitutional and statutory provisions on

40 Savings & Loan Society v. Multnomah County, 169 U. S. 421, 432 (42:803).

41 Field v. Barber Asphalt Paving Co., 194 U. S. 618 (48:1142); Groza v. Tiernan, 148 U. S. 657, 662 (37:599); Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232 (33: 892); Home Ins. Co. v. New York, 134 U. S. 594 (33:1025); Pacific Exp. Co. v. Seibert, 142 U. S. 339 (35:1035); Kentucky Railroad Tax Cases, 115 U. S. 321 (29:414); Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283 (42: 1037); State Railroad Tax Cases, 92 U. S. 575, 618 (23:663).

42 Smyth v. Ames, 169 U. S. 466, 550 (42:879); Santa Clara County v. So. Pac. R. Co., 118 U. S. 394, 396 (30:118); Charlotte, C. & A. Railroad v. Gibbes, 142 U. S. 386, 391 (35:1051); Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150, 154 (41:666); Pembina Consol. Silver Min. & M. Co. v. Pennsylvania, 125 U. S. 181, 189 (31:650); Missouri P. R. Co. v. Mackey, 127 U. S. 205 (32:107); Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26 (32:588); Covington & L. Turnp. Road Co. v. Sandford, 164 U. S. 578 (41:560).

the subject of taxation, and if, when so considered and construed, they establish a state system of taxation which is, in its essential features, consistent with due process of law, they will be upheld; and it has accordingly been held that the system of taxation established by the constitution and laws of 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 thereon, and under which, on petition required to be filed by the representatives 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 land 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 state.43

44

§ 298. Same-Taxing power vested in the legislature.-The power of taxation is an attribute of sovereignty; it is a sovereign power, inherent in all governments. In the American system of government, the taxing power is vested exclusively in the legislative department, 15 and the judicial department cannot prescribe to the legislature limitations upon its exercise of the power of taxation. The several states, each, in the exercise of its reserved powers of municipal sovereignty, acting through its legislature, when not restrained by its own or the federal constitution, may, for public purposes, tax all the property within its jurisdiction, except the property,

46

43 King v. Mullins, 171 U. S. 404, 437 (43:214).

44 McCulloch V. Maryland, 4 Wheat. 316, 428 (4:579).

45 Spencer v. Merchant, 125 U. S. 345, 361 (31:763); United States v. New Orleans, 98 U. S. 381, 392 (25:225); Merewether v. Garrett, 102 U. S. 472 (26:197).

46 Spencer v. Merchant, 125 U. S. 345, 361 (31:763); Veazie Bank v. Fenno, 8 Wall, 533, 548 (19: 482); Providence Banks v. Bill

47

48

ings, 4 Pet. 514, 563 (7:939); McCulloch v. Maryland, 4 Wheat. 316, 428 (4:579).

47 Railroad Co. v. Pennsylvania, 153 U. S. 628, 649 (38:846); Cleveland, P. & N. R. Co. v. Pennsylvania, 15 Wall. 300, 319 (21:179); North Cent. R. Co. v. Jackson, 7 Wall. 262 (19:88); St. Louis v. Wiggins' Ferry Co., 11 Wall. 423 (20:192); Minot v. Philadelphia, W. & B. R. Co., 18 Wall. 206 (21: 888); McCulloch v. Maryland, 4

49

securities, and instrumentalities 50 of the federal government. Usually the possession of the legal title to land by the government determines both the fact and the right of ownership; but where congress has prescribed the conditions upon which portions of the public domain may be alienated, and provided that upon the performance of the conditions a patent from the United States shall issue to the donee or purchaser, and all such conditions are complied with, the land alienated being distinctly defined, it only remaining for the government to issue its patent, and until such patent issues holding the legal title in trust for him, who in the meantime is not excluded from the use of the property, then the donee or purchaser will be treated. as the beneficial owner of the land, and the same will be held subject to taxation by the state as his property. This exception to the general doctrine is founded upon the principle that he who has the right to the property and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to avoid his just share of taxation. A tax upon the property of federal agencies does not deprive them. of the power to serve the government as they were intended to serve it, nor hinder the efficient exercise of their power, but leaves them free to discharge the duties they have undertaken to perform, and is, therefore, not forbidden by the federal constitution.52

Wheat. 316, 428 (4:579); Union Pacific R. Co. v. Peniston, 18 Wall. 5 (21:787).

48 Wisconsin Central R. Co. v. Price County, 133 U. S. 496, 514 (33:687); Van Brocklin v. Tennessee, 117 U. S. 151, 168 (29: 845); McGoon v. Scales, 9 Wall. 23 (19:545); Tucker v. Ferguson, 22 Wall. 527 (22:805); Kansas City R. Co. v. Prescott, 16 Wall. 603 (21:373); Union Pacific R. Co. v. McShane, 22 Wall. 444 (22:747); Northern Pac. R. Co. v. Rockue, 115 U. S. 600 (29:477).

49 Society for Savings v. Coit, 6 Wall. 594 (18:897); New York v. Com'rs of Taxes, 2 Black, 620 (17: 451); Provident Inst. for Saving v.

51

(18:

Massachusetts, 6 Wall. 611
907); Weston v. Charleston, 2 Pet.
449 (7:481); Mitchell v. Leaven-
worth County, 91 U. S. 206 (23:
302); New York v. Hoffman, 7
Wall. 16 (19:57).

50 McCulloch V. Maryland, 4 Wheat. 316 (4:579); Osborn v. Bank of United States, 9 Wheat. 738 (6:204); Dobbins V. Erie County, 16 Pet. 435 (10:1022).

51 Wisconsin Central R. Co. v. Price County, 133 U. S. 496, 514 (33:687); Carroll v. Safford, 3 How. 441, 460 (11:671); Witherspoon v. Duncan, 4 Wall. 210, 218 (18.339).

52 Union Pacific R. R. Co. v. Peniston, 18 Wall. 5, 50 (21:787);

(g) EQUAL PROTECTION OF THE LAWS.

§ 299. The states prohibited from denying equal protection of the laws. It is declared in the fourteenth amendment that "no state shall deny to any person within its jurisdiction the equal protection of the laws." This is a limitation upon the states; it is an inhibition upon the states; it applies to, and restrains all the instrumentalities of the state, legislative, executive and judicial, and whoever by virtue of public position under a state government deprives another of the equal protection of the laws, violates the constitutional inhibition, and as he acts in the name of and for the state, and is clothed with its power, his act is that of the state.53 The inhibition does not apply to the acts of private individuals."

§. 300. Corporations are persons within the prohibition.-It is well settled that corporations are persons within the meaning of the constitutional prohibition against the denial of the equal protection of the laws; 55 but a corporation not created by the laws of a state, and not doing business in that state under such conditions as subject it to the process of the state, and not having complied with the laws of the state which are made a condition of its doing business therein, is not, within the meaning of the inhibition, "within its jurisdiction.'' 56

§ 301. Classification for purposes of legislation. The several states, each, respectively, may, in the exercise of its police powers, classify persons, corporations, businesses, occupations, employments, rights and liabilities, for the purpose of adapting legislation to the special requirements and necessities of the members of the several classes. But the classification must not be arbitrary; it must be reasonable and germane to the proposed legislation, and must rest upon some substantial differThompson v. Union Pac. R. Co., 9 Wall. 579 (19:792); Western Union Telegraph Co. v. Massachusetts, 125 U. S. 549 (31:793).

53 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 263 (41:979); Civil Rights Cases, 109 U. S. 3, 62 (27:836); Slaughter-House Cases, 16 Wall. 36 (21:394); Ex parte Virginia, 100 U. S. 339, 346 (25: 676); Neal v. Delaware, 103 U. S. 370 (26:567); Yick Wo. v. Hop

kins, 118 U. S. 356 (30:220); Gibson v. Mississippi, 162 U. S. 579 (40:1078); Scott v. Neal, 154 U. S. 34 (38:896).

54 Civil Rights Cases, supra.

55 Ry. Co. v. Ellis, 165 U. S. 150, 168 (41:666) and authorities there cited.

56 Blake v. McClung, 172 U. S. 658 (43:432); Fire Association of Philadelphia v. New York, 119 U. S. 110-129 (30:342).

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