with the exception of the limitations and restrictions in this chapter mentioned or referred to, it must be taken as the general fact that the power to tax is limited in extent, in purpose and in methods only by the will of the state as expressed in its laws.1

1A limitation imposed by the law under which county bonds are issued upon the rate of taxation that may be levied for their payment enters into the contract and is obligatory. State v. Shortridge, 56 Mo., 126; State v. Macon Co. Court, 68 Mo., 29. See United States v. Clark Co., 96 U. S., 211. And as to whether particular securities were issued under such a restriction, see Murray v. Charleston, 96 U. S., 432, on its special facts.

Under a constitution providing that county authorities shall never assess taxes the aggregate of which shall exceed a certain rate, except in the payment of indebtedness existing at the adoption of the constitution, a tax above such limit to pay such indebtedness is not to be defeated by the fact that prior taxes had been levied for the same purpose, but misappropriated. Pope County v. Sloan, 92 Ill., 177.

CHAPTER IV.

THE PURPOSES FOR WHICH TAXES MAY BE LAID.

The general rule. It is implied in all definitions of taxation that taxes can be levied for public purposes only. Differences of opinion frequently arise concerning the power to impose taxation in particular cases, but all writers who treat the subject theoretically and all jurists agree in the fundamental requirement that the purpose shall be public, and they differ, when they differ at all, upon the question whether the particular purpose proposed is within the requirement. It is also agreed that the determination what is and what is not a public purpose belongs in the first instance to the legislative department. It belongs there because the taxing power is a branch of the legislative, and the legislature cannot lie under the necessity of requiring the opinion or the consent of another department of the government before it will be at liberty to exercise one of its acknowledged powers. The independence of the legis lature is an axiom in government; and to be independent, it must act in its own good time, on its own judgment, influenced by its own reasons, restrained only as the people may have seen fit to restrain the grant of legislative power in making it. The legislature must, consequently, determine for itself, in every instance, whether a particular purpose is or is not one which so far concerns the public as to render taxation admissible.2

1This is as true under one form of government as under another. In Sidney's Treatise "On Government," where he has occasion to refer to the doctrine of courtiers, that the revenue voted to the king is to be spent as he thinks convenient instead of being devoted strictly to public purposes, he very truly remarks, that this "is no less than to cast it into a pit of which no man ever knew the bottom. That which is given one day is squandered away the next; the people is always oppressed with impositions to foment the vices of the court; these daily increasing, they grow insatiable; and the miserable nations are compelled to hard labor in order to satiate those lusts that tend to their own ruin." Ch. 3, § 6.

2 Sharpless. Philadelphia, 21 Pa. St., 147; Booth v. Woodbury, 32 Conn., 118; Brodhead v. Milwaukee, 19 Wis., 624; Willams v. School District, 33 Vt., 271; Thomas v. Leland, 24 Wend., 65; Harris v. Dubluclet, 30 La. An., 662; Bennington v. Park, 50 Vt., 178.

But it is also generally admitted that the legislative determination on this subject is not absolutely conclusive. It may be sufficiently so to put the administrative machinery of the state in motion; but when the exaction is made of an individual, and the power of the state is made use of to compel submission, he has always the right to invoke the protection of the law. And an appeal to the law for protection of individual property must necessarily render the question, which lies at the foundation of the demand, a judicial question, upon which the courts cannot refuse to pass judgment. It has been forcibly, and yet very truly, said, that an unlimited power in the legislature to make any and every thing lawful which it might see fit to call taxation, would, when plainly stated, be an unlimited power to plunder the citizen.1 In attempting to exercise the right, in any particular case, the legislature merely asserts its jurisdiction to act; but questions of jurisdiction are not usually concluded by a decision in its favor made by the party claiming it; they necessarily remain open, and may be disputed anywhere. This is as true of courts as it is of the legislature; jurisdiction comes from the law, and is not obtained by any tribunal through a simple assertion that it exists. When, therefore, the question of the validity of taxation be comes judicial, if it shall appear that the exaction is made for a purpose not public, the right of the individual to protection is clear. Such an exaction is not within the competency of the legislative power, and the attempt to enforce it, however honestly made, could only be an attempt to take property from its possessor under an authority which the law of the land does not recognize. "The theory of our governments, state and national," it has been truly said, "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 powers

1 Tyson v. School Directors, 51 Pa. St., 9; Washington Avenue, 69 Pa. St., 352; S. C., 8 Am. Rep., 255; Talbot v. Hudson, 16 Gray, 417, 421; Freeland v. Hastings, 10 Allen, 570, 575; Hooper v. Emery, 14 Me., 375, 379; Allen v. Jay, 60 Me., 124, 139; S. C., 11 Am. Rep., 185; People v. Township Board of Salem, 20 Mich., 452, 459; S. C., 4 Am. Rep., 400; Morford v. Unger, 8 Ia., 82, 92; Hanson v. Vernon, 27 Ia., 28; Loan Association v. Topeka, 20 Wall., 655; In re Flatbush, 60 N. Y., 398; State v. Foley, 30 Minn., 350; Cole v. La Grange, 113 U. S., 1.

which grow out of the essential nature of all free governments; implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. . Of all the powers conferred upon government, that of taxation is most liable to abuse. Given a purpose or object for which taxation may lawfully be 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 constitution or statute, but in most instances for which taxes are levied as the support of government, the prosecution of war, the national defense- 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 is, therefore, the strongest, the most pervading of all the powers of government, reaching directly or indirectly to all classes of the people. This power can as readily be employed against one class of individuals 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 on favored individuals 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." 1

Presumption in favor of legislation. It is not inconsistent with this doctrine that in every instance the highest consideration should be paid to the determination of the legislature that a tax should be laid. It is not lightly to be assumed that its members have come to the examination of the subject with any other than public motives, or that they have failed to give

1 Miller, J., in Loan Association v. Topeka, 20 Wall., 655, 663. And see Freeland v. Hastings, 10 Allen, 570, 575; Hooper v. Emery, 14 Me., 375, 379; Allen v. Jay, 60 Me., 124; S. C., 11 Am. Rep., 185; Gove v. Epping, 41 N. H., 539; Crowell v. Hopkinton, 45 N. H., 9; Curtis v. Whipple, 24 Wis., 350; People v. Flagg, 46 N. Y., 401; Tyler v. Beacher, 44 Vt., 648, 651; Matter of Market St., 49 Cal., 546.

it due investigation or reflection. The presumption on the other hand must always be that they have considered it with honesty and fair purpose, and that their action is the result of their deliberate judgment. And with all these presumptions tending to support the legislative action, it would seem but reasonable and proper that the courts should support it when not clearly satisfied that an error has been committed. This is the general rule in constitutional law when the validity of legislation is involved,' and it is applicable with peculiar force to the case of a legislative decision upon the purpose for which a tax may be laid.

For, in the first place, there is no such thing as drawing a clear and definite line of distinction between purposes of a public and those of a private nature. Public and private interests are so commingled in many cases that it is difficult to determine which predominates; and the question whether the public interest is so distinct and clear as to justify taxation is often embarrassing to the legislature, and not less so to the judiciary.

All attempts to lay down general rules whereby the difficulties may be solved have seemed, when new and peculiar

1 Story on Const., § 1482, and notes; Sedg. on Const. and Stat. L., 414; Cooley, Const. Lim., 5th ed., 218, and numerous cases cited in notes.

2 General Purposes of Taxation. These are enumerated by Adam Smith as follows: 1. The defense of the commonwealth. This includes the expenses of forts, arsenals, ships of war, a standing army and its equipment, the arming and disciplining of the militia, military roads and means of transportation of troops, etc. 2. The administration of justice. 3. The expense of public works and public institutions, of which he enumerates(a.) Public works and institutions for facilitating the commerce of the society (b.) Institutions for the education of youth-(c.) Institutions for the instruction of people of all ages. 4. The expense of supporting the dignity of the sovereign.

Doctor Wayland enumerates more perfectly the purposes for which the public funds are most commonly expended as follows: 1. The expenses for the support of civil government, including in these the compensation of judicial, legislative and executive officers. 2. Expenses for the purposes of education, classified by him as common education and scientific education. 3. Expenses for maintaining religious worship, which, however, he considers inadmissible. 4. Expenses for the improvement of coasts and harbors, and whatever is necessary for the security of external commerce, and for roads, canals, etc. 6. Expenses of pauperism. 6. The expenses of

war.