to encourage one branch of industry or trade, though at the expense of others; as where a tax is laid upon certain fabrics received from abroad by the exchanges of commerce for the sake of encouraging the domestic producer of similar articles, on whose industry the tax operates as a bounty. Such a burden, however, may be so heavy that the market will not warrant its being paid, and in such case, instead of producing revenue, it merely precludes importation. But a law which, under the name of taxation, has for its purpose only to embarrass and, perhaps, to destroy a certain branch of commerce, if enacted by a state, would look to the general police power for its justification; and, if enacted by the general government, would seem more properly to derive its force from the authority conferred upon the government to regulate commerce and the intercourse with foreign countries, than to an authority conferred for revenue purposes, which such a law would not aim or tend to subserve.2

1 Tucker's Pol. Econ., ch. 14. Mr. Justice Story, in his treatise on the Constitution, § 965, asserts very broadly the power to tax for other purposes than for revenue. He says: "The absolute power to levy taxes includes the power in every form in which it may be used, and for every purpose to which the legislature may choose to apply it. This results from the very nature of such an unrestricted power. A fortiori, it might be applied by congress to purposes for which nations have been accustomed to apply it. Now, nothing is more clear from the history of commercial nations than the fact that the taxing power is often, very often, applied for other purposes than revenue. It is often applied as a regulation of commerce. It is often applied as a virtual prohibition upon the importation of particular articles, for the encouragement and protection of domestic products and industry; for the support of agriculture, commerce and manufactures (Hamilton's Report on Manufactures, in 1791); for retaliation upon foreign monopolies and injurious restrictions (see Mr. Jefferson's Report on Commercial Restrictions, in 1793; 5 Marshall's Life of Washington, ch. 7, pp. 482 to 487; 1 Wait's State Papers, 422, 434); for mere purposes of state policy and domestic economy; sometimes to banish a noxious article of consumption; sometimes as a bounty upon an infant manufacture, or agricultural product; sometimes as a suppression of particular employments; sometimes as a prerogative power to destroy competition and secure a monopoly to the government. See Smith's Wealth of Nations, b. 5, ch. 2, art. 4."

2 Chief Justice Marshall says in McCullough v. Maryland, that "the power to tax involves the power to destroy." And again, “if the right to lax 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 such state or corporation may prescribe." Weston v. Charleston, 2 Pet., 449. The learned chief justice, in these cases,

2. They may be intended to discourage trades and occupa tions which may be useful and important when carried on by a few persons under stringent regulations, but exceedingly mischievous when thrown open to the general public and engaged in by many persons. An example is the heavy tax imposed in some states and in some localities of other states on those who engage in the manufacture or sale of intoxicating drinks. Two purposes are generally had in view in imposing such a tax: to limit the business to a few persons, in order to more efficient and perfect regulation, and also to produce a revenue. As no one will pay the tax who does not expect to be reimbursed the expense from the profits of sales, it is obvious that the heavier the tax the fewer can afford to pay it, and it may be made so heavy that no one can afford to pay it, and then it becomes prohibitory. A tax laid for the double purpose of regulation and revenue must be grounded in both the police and the taxing power; but the grant of a power to tax would not authorize the imposition of a burden in its nature and purpose prohibitory.2

Taxes in kind. Taxes are generally demanded in money, and any tax law will be understood to require money when a

was arguing against the existence of the power; and the idea he expresses so forcibly is, that the power to tax is so vast, and rests upon reasons which at times are so imperative, that it may be exercised again and again, as the exigencies of the state may demand, until the property taxed is exhausted or the privilege taxed can no longer be exercised. This statement has abundant illustrations in history, of people absolutely impoverished by taxation, and even, in individual cases, sold into slavery because they could not meet the demands of the state upon them. It may justly be questioned, whether this strong statement, which was put forth as a defense against an injurious tax, will fairly justify an affirmative exercise of power that has not revenue in view, but is only called a tax in order that it may be employed as an instrument of destruction. In other words, whether the unavoidable incident to the exercise of a power to demand and collect revenue can lawfully be the inducement to the exercise of the power when revenue is not contemplated or sought.

1 Youngblood v. Sexton, 32 Mich., 406.

2 So held in Ex parte Burnett, 30 Ala., 461. The early case of State v. Doon, R. M. Charl., 1, affirmed the right to levy a tax of $1,000 on faro tables for the purpose of prohibition, though the payment of the tax would not legalize the use of the tables. Compare Veazie Bank v. Fenno, 8 Wall.,

different intent is not expressed.' But if the condition of any state, in the judgment of its legislature, shall require the collection of taxes in kind—that is to say, by the delivery to the proper officers of a certain proportion of products—or in gold or silver bullion, or in anything different from the legal tender currency of the country, the right to make the requirement is unquestionable, being in conflict with no principle of government, and with no provision of the federal constitution. Instances of taxes in kind occurred in the colonial period, and statutes requiring state taxes to be paid in gold and silver, to the exclusion of legal tender treasury notes, have been fully sustained in several of the states. The exigencies of government have also in some cases seemed to require that the state should make the taxes levied for its municipalities payable in state obligations; and if it shall so provide, the municipalities have no alternative and must submit to the requirement.*

A levy is sometimes made payable in labor; but this has commonly been restricted to the labor needed to keep the highways in repair; and while it is in its nature a tax, it par

1 Amenia v. Stanford, 6 Johns., 92; Bryan v. Sundberg, 5 Tex., 418; Judd v. Driver, 1 Kan., 455. As to taxes made payable in scrip, see New Orleans v. Jackson, 33 La. An., 1038. The running of the statute of limitations does not excuse a collector from taking scrip when the statute provides for it. Daniel v. Askew, 36 Ark., 487.

2 Lane County v. Oregon, 7 Wall., 71; Williams' Case, 3 Bland Ch., 186, 255; 2 Rives' Life of Madison, 146. An early tax by the French government in Canada was of a certain proportion of all the beaver skins and moose hides. Parkman's Old Régime, 302.

3 Perry v. Washburn, 20 Cal., 318, 350; State Treasurer v. Wright, 28 Ill., 509; Trenholm v. Charleston, 3 Rich. (N. S.), 347, 349; Whittaker v. Haley, 2 Or., 128; Lane County v. Oregon, 7 Wall., 71; People v. Hogan, 52 Cal., 171; Reclamation District v. Hagar, 6 Sawy., 567; Hagar v. Reclamation District, 111 U. S., 701. Contra, Haas v. Misner, 2 Idaho, 174; Cruther v. Sterling, 3 Idaho, 306. It has been decided that a state cannot compel state scrip to be received in payment of county, school and district taxes; it not being money, and the creditors of the municipalities not being compellable to receive it in payment. Wells v. Cole, 27 Ark., 603. But see next note.

4" Cities and counties cannot disregard the provisions of the acts of the legislature for the collection of revenue, because they are but its creatures and have no sovereignty; have no power whatever to collect a single dollar of tax for any purpose whatever, unless it is conferred upon them by the legislature; their taxing powers are all derived from that source, and they are dependent upon its will for every cent of revenue they raise." English v. Oliver, 28 Ark., 317. See Wallis v. Smith, 29 Ark., 354.

takes, to some extent at least, of a police regulation. Neither in common speech nor in the customary revenue legislation would a burden of this nature be understood as embraced in the term tax; and statutory provisions for assessment are not therefore applicable to it unless made so in express terms.1

Taxes not debts. It sometimes becomes a question whether a tax can be regarded as a debt in the ordinary sense of that term, so that the ordinary remedies for the collection of debts. can be applied to it. In general it will be found that statutes imposing taxes make special provision for their collection, and do not apparently contemplate that any others will be necessary; but these may, nevertheless, fail; and the question then arises whether the tax must fail also, or whether resort may be had by the state to such remedies as would be available to individuals to enforce demands owing to themselves. But instances have occurred of tax laws which provided for laying the tax, but made no provision whatever for collection. In such a case it may well be held that the legislature contemplated the enforcement of the tax by the ordinary remedies; and therefore, if the tax was assessed against an

1 See Amenia v. Stanford, 6 Johns., 92.

In Sawyer v. Alton, 3 Scam., 127, 130, a provision of the constitution that "the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession,” was held not to prevent the levy of a poll tax payable in labor. In Town of Pleasant v. Kost, 29 Ill., 490, 494, a highway assessment on property, payable in labor, was held not to be in the proper sense a tax. And see Fox v. Rockford, 38 Ill., 451; Macomb v. Twaddle, 4 Ill. App., 254; State v. Halifax, 4 Dev., 345. In the case above cited of Amenia v. Stanford, 6 Johns., 92, 93, where the question was whether one who had worked out a highway poll tax had gained a settlement under a statute which made the settlement depend on the payment of a tax, it is said, "Taxes, in the popular and ordinary sense of the term (and in that sense laws are generally to be read), mean pecuniary contributions; and when the word paid is added by way of defining it, the sense becomes more clear and certain." It was therefore held that a settlement was not gained by working out a highway assessment. And see Starkesboro v. Heinesburgh, 13 Vt., 215. An assessment of $4 or two days' work on each male resident over twenty-one and under sixty was held to be a poll tax, and as such forbidden by the constitution of Nevada. Hassett v. Walls, 9 Nev., 387.

A commutation tax in lieu of working on the streets, held not to be a poll tax in Johnson v. Macon, 62 Ga., 645.

individual, that assumpsit would lie for its recovery.' The same reasoning would support a proceeding in equity to enforce a lien for the tax when assessed, not against an individual, but against property; and some courts have gone so far as to hold that the imposition and assessment of a tax create a legal obligation to pay, upon which the law will raise an assumpsit, notwithstanding the statute has given a special remedy. But, in general, the conclusion has been reached that when the statute undertakes to provide remedies, and those given do not embrace an action at law, a common law action for the recovery of the tax as a debt will not lie. The assessment of

1 Baltimore v. Howard, 6 H. & J., 383, 394; Mayor v. McKee, 2 Yerg., 167; Rutledge v. Fogg, 3 Cold., 554; Succession of Irwin, 33 La. An., 63; State v. Severance, 55 Mo., 378. See Haas v. Misner, 2 Idaho, 174; San Francisco Gas Co. v. Brickwell, 62 Cal., 641.

Compare Dubuque v. Ill. Cent. R. R. Co., 39 Ia., 56.

Where an action lies the statute of limitations will apply to bar the remedy after the statutory period. Burlington v. Railroad Co., 41 Ia., 134; State v. Yellow Jacket, etc., Co., 14 Nev., 220.

But the time may be extended by statute at any time before it has fully State v. Hernan, 70 Mo., 420.

run.

That where a municipal corporation is dissolved, its uncollected taxes are not assets which can be seized by attachment or other judicial process, and subjected to the payment of corporate indebtedness, see Merriwether v. Garrett, 102 U. S., 472.

The United States is not precluded, by anything in the revenue act of 1866, from employing common law remedies for the collection of its dues. Savings Bank v. United States, 19 Wall., 227. Assumpsit will lie against an importer for customs dues, notwithstanding the government has a lien on the goods and a bond for the payment of duties. Meredith v. United States, 13 Pet., 486.

In Louisiana it seems an action will lie for a special assessment, notwithstanding there is a lien on land. New Orleans v. Day, 29 La. An., 416. In Michigan an action only lies for taxes when expressly given by statute. Staley v. Columbus, 36 Mich., 38. See Sherwin v. Savings Bank, 137 Mass., 444.

2 Dugan v. Baltimore, 1 Gill & J., 499; State v. Steamship Co., 13 La. An., 497; Burlington v. Railroad Co., 41 Ia., 134. Assumpsit held to lie where the statutory remedy was deemed inadequate. Ryan v. Gallatin Co., 14 Ill., 78; Dunlap v. Same, 15 Ill., 7. The right to resort to a summary remedy of unusual harshness and rigor could not be implied in any case. Succession of Irwin, 33 La. An., 63, 75.

3 Ruddock v. Gordon, Quincy's Rep., 58; Andover Turnpike v. Gould, 6 Mass., 39, 44; Pierce v. Boston, 3 Met., 520; Crapo v. Stetson, 8 Met., 393; Appleton v. Hopkins, 5 Gray, 530; Home Savings Bank v. Boston, 131 Mass., 277; Newport, etc., Co. v. Douglass, 12 Bush, 673; Johnston v. Louisville, 11