the tax, though it may definitely and conclusively establish a demand for the purposes of statutory collection, does not constitute a technical judgment;' and the taxes are not "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 and enforcing of which their personal consent individually is not required." They do not draw interest, as do sums of money owing upon contract; but only when it is expressly given.' They are not the subject of set-off, either on behalf of the state or the municipality for which they are imposed, or of the collector, or on behalf of the person taxed, as against such state, municipality or collector. The law abolishing imprisonBush, 527; Camden v. Allen, 26 N. J., 398; Webster v. Seymour, 8 Vt., 135, 140; Shaw v. Peckett, 26 Vt., 482; Packard v. Tisdale, 50 Me., 376; Carondelet v. Picott, 38 Mo., 125; Perry v. Washburn, 20 Cal., 318; Richards v. Stogsdell, 21 Ind., 74; McCall v. Lorrimer, 4 Watts, 351; Miller v. Hale, 26 Pa. St., 432; Lane County v. Oregon, 7 Wall., 71, 80; Board of Education v. Old Dominion, etc., Co., 18 W. Va., 441. Compare Durant v. Supervisors, 26 Wend., 66; Merriwether v. Garrett, 102 U. S., 572; Chrismon v. Reich, 2 Utah, 111; State v. Yellow Jacket, etc., Co., 14 Nev. 220; Detroit v. Jepp, 52 Mich., 458; Faribault v. Misener, 20 Minn., 396; Hibbard v. Clark, 56 N. H., 155; Afferson v. Memphis, 2 Flip., 363. A judgment for taxes cannot include interest without legislative authority. Edmonson v. Galveston, 53 Tex., 157. It has been decided in Vermont that if a tax be duly assessed against a feme sole who afterwards marries, the husband's property, including the personal property acquired by the marriage, is not liable to be distrained for the satisfaction of the tax. Sumner v. Pinney, 31 Vt., 717.

1 Johnson v. Howard, 41 Vt., 122, 125; Pierce v. Boston, 3 Met., 520.

2 Pierce v. Boston, 3 Met., 520, per Shaw, Ch. J.; Perry v. Washburn, 20 Cal., 318; Webster v. Seymour, 8 Vt., 135, 140; Johnson v. Howard, 41 Vt., 122; Finnegan v. Fernandina, 15 Fla., 379; Edmonson v. Galveston, 53 Tex., 157.

A tax is not a debt provable in bankruptcy. In re Duryee, 2 Fed. Rep., 68. It is not assignable as a debt. McInery v. Reed, 23 Ia., 410.

3 Shaw v. Peckett, 26 Vt., 482; Haskell v. Bartlett, 34 Cal., 281; Himmelman v. Oliver, 34 Cal., 246; Edmonson v. Galveston, 53 Tex., 157; Perry and Hall Counties v. Railroad Co., 65 Ala., 391.

4 Pierce v. Boston, 3 Met., 520; Johnson v. Howard, 41 Vt., 122. See McCracken v. Eder, 34 Pa. St., 239; Hibbard v. Clark, 56 N. H.,

155;

Cobb

v. Elizabeth City, 73 N. C., 1; Adraska City v. Gas Co., 9 Neb., 339. But a state law may make municipal obligations a set-off to taxes, and there is no constitutional objection to doing so. Amy v. Shelby Co. Taxing Dist., 114 U. S., 387.

"See cases cited in last note. Also Trenholm v. Charleston, 3 S. Car. (N. S.), 394; Himmelman v. Spanagel, 39 Cal., 389; Hawkins v. Sumter

ment for debt has no application to taxes; and the remedies for their collection may include an arrest if the legislature shall so provide.1

The repeal of a tax law puts an end to all right to proceed to a levy of taxes under it, even in cases already commenced, unless the right is reserved in the repealing statute, and statutory remedies for the enforcement of a tax are gone when the statute is repealed without an express saving. But in general, when a tax system is revised, with a repeal of the former law, it is safe to assume that the legislative intent is that the new

County, 57 Ga., 166. "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." Finnegan v. Fernandina, 15 Fla., 379. It is no defense to the payment of a tax that an over-payment has been made in the tax of a former year. New Orleans v. Davidson, 30 La. An., 554. A similar point is decided in Wayne v. Savannah, 56 Ga., 448. A railroad company, in payment of county taxes, tendered past due coupons of county railroad aid bonds, which were not made receivable by law for taxes. Held, that the tender was bad, as the doctrine of set-off has no application to taxation. Morgan v. Pueblo, etc., R. R. Co., 6 Col., 478. The fact that a county owes a person taxed a considerable sum is no ground for enjoining payment of a county tax. And county authorities have no power to contract in advance of the assessment of a tax, that when levied it shall be considered paid by the county indebtedness. Scobey v. Decatur Co., 72 Ind., 551. No set-off of independent claims is admissible as against federal taxes, even when they are being collected by suit. United States v. Pacific R. R. Co., 4 Dill., 66.

Taxes, not being debts, are payable in money alone, in the absence of express statutory provisions providing otherwise. Shreveport v. Gregg, 28 La. An., 836.

1 Appleton v. Hopkins, 5 Gray, 530; Harris v. Wood, 6 T. B. Monr., 641; Charleston v. Oliver, 16 S. C., 47; McCaskell v. State, 53 Ala., 511. See post, ch. XIV.

2 Ross v. Lane, 11 Miss., 695; Abbott v. Britton, 23 La. An., 511.

If, after an assessment is made, the constitution of the state is so amended as to limit the rate of tax that may be levied, a subsequent levy upon the assessment must keep within the limit. Ketchum v. Pacific R. R. Co., 4 Dill., 41.

3 Mount v. State, 6 Blackf., 25; McQuilkin v. Doe, 8 Blackf., 581. This is so, even as to assessments in process of collection. Marion, etc., Gravel Road Co. v. Sheeth, 53 Ind., 35.

See Commonwealth v. Standard Oil Co., 101 Pa. St., 119.

If a statute giving a right of action is repealed without any saving of pending actions, the right is gone as to such actions. St. Joseph Co. Court v. Ruckman, 57 Ind., 96; French v. State, 53 Miss., 651.

enactment shall be of prospective force only, and shall not disturb existing valid assessments.1

Taxation and protection reciprocal.. It has been said already that the taxing power of a state is co-extensive with its sovereignty, and that whatever objects of government are within its reach are subject to it and may be made the basis of levies. It is commonly said that taxation and protection are reciprocal; and this, if rightly understood, is correct, though some subjects receive the protection of government which are not taxable, and some may be taxed though not protected. The vessels of a foreign nation or of its citizens and the property in them, and the citizens themselves when temporarily in the country for business or pleasure, are protected by our laws but not taxable under them; the consideration for the exemption being the like exemption of our own vessels, property and citizens when in foreign lands. Ambassadors and others connected with the public service of foreign countries, though residing here in such service, are also exempt as representatives of the government which accredits or employs them, but

In Warren R. R. Co. v. Belvidere, 35 N. J., 584, 587, a tax law was repealed after tax was laid, and the court say: "Such repeal does not affect the tax assessed. That was a matter closed by the assessment, and besides, has been concluded by final judgment since the repeal." But in that case the collection of the tax was provided for not by the law which was repealed, but by a general law which remained in force. See Belvidere v. Railroad Co., 34 N. J., 193. Also Gorley v. Sewell, 77 Ind., 316; Clegg v. State, 42 Tex., 605; Pacific, etc., Tel. Co. v. Commonwealth, 66 Penn. St., 70. It is competent for the legislature, after assessment has been made for municipal taxation, to repeal the law and refer the power to make the assessment to another authority, even though the constitution forbids retrospective laws. State v. St. Louis, etc., R. Co., 9 Mo. App., 532.

In State v. Waterville Savings Bank, 68 Me., 515, an assessment for which an action was given was held to remain collectible, notwithstanding the repeal of the statute under which it was laid. See Smith v. Auditor General, 20 Mich., 398. As against the officer or municipality the legislature may undoubtedly take away the right to collect a tax even after proceedings begun. Selma, etc., Association v. Morgan, 57 Ala., 33. A tax is not defeated by the land for which it was levied being set off from the city levying it, but it may be enforced against the owner afterwards. Deason v. Dixon, 54 Miss., 585.

2 Vattel, b. 1, c. 19, § 216; Brown v. Smith, 15 Beav., 444; Attorney-General v. Napier, 6 Ex., 217. It is not the mere employment, however, that exempts them, but the fact that they are resident in the country only for

alienage itself does not work an exemption if the alien is domiciled in the country, so far at least as he has property there to be protected by its laws; and tangible property in the country, as stock in trade or manufacture, or for sale, is taxable irrespective of the residence or allegiance of owners. But a very large proportion of the subjects of government are never taxed at all, though they are entitled to protection and are in fact protected exactly as if they were. This is the case generally with all infants and married women not having independent property or business, and with many others who do not come within the rules which the state has prescribed for the apportionment of this species of burden. These rules are prescribed by the state on a consideration of what is wisest, and most for the general good; but the exemptions they give are only temporary and conditional, and may be changed at any time. Even as regards the exempted subjects, taxation and protection may be said to be reciprocal in the sense that those who are protected are liable to taxation whenever the state shall see fit to impose it. On the other hand one purpose of taxation sometimes is to discourage a business, and perhaps to put it out of existence; and it is taxed without any idea of protection attending the burden. This has been avowedly the purpose in the case of some federal taxes, while in others the burden has been laid on subjects which by state legislation were put out of the protection of the law. The taxes have nevertheless been sustained. The persons who pay these taxes pay them, therefore, not for protection in respect to the subjects taxed, but in con

the purposes of the employment and not domiciled there. Persons domiciled in a country, but made use of by other countries as consular agents, are taxable where they are domiciled.

See post, ch. XII. As to what amounts to a surrender of domicile, see the discussion in Borland v. Boston, 132 Mass., 89.

2 Vattel says that the right to tax an individual results from the general protection afforded to him and his property. B. 1, c. 20. See Eggleston v. Charleston, 1 Sou. Car. Const. R., 45; Bank of U. S. v. State, 12 S. & M., 456; Warden v. Supervisors, 14 Wis., 618; De Pauw v. New Albany, 22 Ind., 204; Commonwealth v. Standard Oil Co., 101 Pa. St., 119; Berlin Mills v. Wentworth's Location, 60 N. H., 156; Norris v. Waco, 57 Tex., 635.

Veazie Bank v. Fenno, 8 Wall., 533.

4 See License Tax Cases, 5 Wall,, 462; Purvear v. Commonwealth, 5 Wall., 475; Commonwealth v. Holbrook, 10 Allen, 200; Block v. Jacksonville, 36 Ill., 301; Youngblood v. Sexton, 32 Mich., 406.

sideration of the general benefits of organized society, which are supposed to be infinitely more to every citizen than the privilege of following any particular trade or calling.

Where a non-resident is owner of tangible property within the state, and the state imposes taxes upon it, the tax is not a charge against the owner personally, but must be enforced against the property itself. The state has no jurisdiction to assess a tax as a personal charge against non-residents; neither can the personalty of a non-resident be taxed unless it has an actual situs within the state, so as to be under the protection of its laws. The mere right of a foreign creditor to receive from his debtor within the state the payment of his demand cannot be subjected to taxation within the state. "It is a right that is personal to the creditor where he resides, and the residence or place of business of his debtor is immaterial. The power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects within the jurisdiction of the state. These subjects are persons, property and business. Whatever form taxation may assume, whether as duties, imposts, excises or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them the taxation may be exercised in a great variety. of ways. It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmutations. And the amount of the taxation may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the federal constitution, the power of the state as to the

1 Dow v. Sudbury, 5 Met., 73; Herriman v. Stowers, 43 Me., 497; People v. Supervisors of Chenango, 11 N. Y., 563; St. Paul v. Merritt, 7 Minn., 198; Catlin v. Hull, 21 Vt., 152. A non-resident who has voluntarily returned some of his personalty for taxation does not thereby consent to be taxed for all; and if the assessor taxes him for more, he is not obliged to appeal from the assessment, but may contest the collection. Phelps v. Thurston, 47 Conn., 477. Compare Hilton v. Fonda, 86 N. Y., 339.

2 That personalty may be taxed where it is, though the owner is a nonresident, see ch. XII. Personal allegiance has no necessary connection with the right of taxation. An alien may be taxed as well as a citizen. See Witherspoon v. Duncan, 4 Wall., 210.