CHAPTER VII.

THE APPORTIONMENT OF TAXES.

When the state has need of the property of citizens for its sovereign purposes, it may lawfully appropriate it against the will of the owner either under the power to tax or the right of eminent domain. There is a difference in the two cases which is vital. When property is appropriated under the right of eminent domain, a particular item or parcel is taken, because for public purposes there is special need of it, and the state takes it under proceedings which amount, so far as the owner is concerned, to a forced sale. But taxation is based upon the idea of calling upon the people for equal and proportional contributions to the public wants, that the burdens of government may fall ratably upon all who in justice should bear them.1 Apportionment of the burden is therefore a necessary element in all taxation.

Two things are involved in apportionment. The first is the selection of the subjects of taxation. No state undertakes to tax everything which comes within the reach of the taxing power; and it would be idle as well as mischievous in the last degree if it were to attempt it. For while the state may tax all persons as such, and all property as such, it may also tax all occupations, all amusements, and the very enjoyment of customary rights and privileges, until the exactions would be oppressive from their very number when not otherwise onerous, and a free people would not endure them. The more reasonable and politic course is to select for taxation as few subjects as possible, consistent with a fair distribution of the burden.

The other requisite in apportionment is the laying down of a rule by which to measure the contribution which each of the subjects selected for taxation shall make. This rule only the legislative power of the state is competent to prescribe, and apportionment, therefore, is always an act of legislation."

People v. Brooklyn, 4 N. Y., 419; Woodbridge v. Detroit, 8 Mich., Booth v. Woodbury, 32 Conn., 118; Macon v. Patty, 57 Miss., 378.

274;

2 Scoville v. Cleveland, 1 Ohio St., 126; Youngblood v. Sexton, 32 Mich.,

"The power of taxing and the power of apportioning taxation are identical and inseparable. Taxes cannot be laid without apportionment, and the power of apportionment is, therefore, unlimited, unless it be restrained as a part of the power of taxation."1

The methods of apportionment are numerous and dissimilar, but most taxes may be classified under the three heads of specific taxes, ad valorem taxes, and taxes apportioned by special benefits.

Specific Taxes. Under this head may be classed those which impose a specific sum by the head or number, or by some standard of weight or measurement, and which require no assessment beyond a listing and classification of the subjects to be taxed. License taxes and other taxes on business or occu pations, stamp taxes, taxes on franchises and privileges, are usually specific, as are also other excise and customs taxes.

As regards all such taxes, the law by which they are laid is of itself a complete apportionment. Ministerial officers have nothing to do but to list the subjects of taxation; classify them where that is necessary; ascertain the number, weight, measurement, etc., when taxation depends upon it, and collect the sum which the law has definitely fixed. If the taxes are stamp or license taxes, even the listing may not be required, but the individual who is to pay them will purchase his stamp or his license, and thus make voluntary payment, as he may have occasion.

Ad Valorem Taxes. A large proportion of the duties on imports are of this description, and so, sometimes, are many of the taxes which make up the internal revenue. The statute laying them prescribes the rule, but requires the action of appraisers in apportioning them between individuals. By far the larger proportion of all state taxation is also upon property by a valuation, and effect can only be given to it by means of assessors, who value the property and apportion the tax by their estimate.

1 Ruggles, J., in People v. Brooklyn, 4 N. Y., 419, 426-7. See Glasgow v. Rowse, 43 Mo., 479, 489; Butler's Appeal, 73 Pa. St., 448.

Taxes Apportioned by Benefits. As between districts, where an object for which taxes are to be levied pertains to two or more, the legislature sometimes makes the apportionment by its own action directly, with reference to the supposed interest of each in such object, or to the benefit each is likely to derive therefrom. It may also provide for the apportionment by commissioners appointed for the purpose. This often becomes necessary in the case of roads and bridges lying partly in two or more districts.1

The case of the division of counties and towns affords many opportunities for state apportionment. If one municipality is set off from another, the old one, as has been seen, unless it is otherwise provided by statute, will retain the public property and remain liable for the corporate debts. It will also retain the right to proceed in the collection of the taxes previously voted, and they will belong to it, though collected in part from the territory now set off. And this will be the case even as to a special tax levied for a particular local work, the whole benefit of which will be received by the old municipality. The duty of collecting the tax will also be upon the officers of the old municipality." If this rule results in injustice to either

1 See Salem Turnpike v. Essex Co., 100 Mass., 282; Shaw v. Dennis, 10 Ill., 405; Supervisors of Will Co. v. People, 110 Ill., 511.

2 See ante, pp. 162-3.

3 Devor v. McClintock, 9 W. & S., 80; Waldron v. Lee, 5 Pick., 323; Harman v. New Marlborough, 9 Cush., 525; Moss v. Shear, 25 Cal., 38; Morgan County v. Hendricks County, 32 Ind., 234. See Alvis v. Whitney, 43 Ind., 83.

4 Marion Co. v. Harvey Co., 26 Kan., 181. See the same case as to a similar question regarding railroad aid taxation.. And compare Chandler v. Reynolds, 19 Kan., 249; Lamb v. Burlington, etc., R. Co., 39 Ia., 333.

5 Fender v. Neosho Falls, 22 Kan., 305. As to the collection and disbursement of taxes in unorganized territory, see Roscommon v. Midland, 39 Mich., 424. Cutting off a portion of a school district from a township takes away at once all power of the township as to school taxes in the part set off. Folkerts v. Power, 42 Mich., 283. But when a new township is erected of territory taken from an old one, it does not become a township as to the assessment, levy and collection of taxes until it has officers, and the old township may until then continue to tax for its own use. Com'rs v. Harrisville, 45 Mich., 442. See Milwaukee, etc., R. Co. v. Kossuth Co., 41 Ia., 57.

When an addition is made to a municipality, the district added comes in under a liability for previous municipal obligations. But there may be legislation to protect against any injustice in such cases. See United States v. Memphis, 97 U. S., 284; Cleveland v. Hensley, 41 Ohio St., 670.

the one party or the other, there can be no remedy except in legislation, for neither could have an action against the other based on equities growing out of the division.1

But the legislature has full power to do justice in such cases by making the proper division of property and debts, either directly or through commissioners, or by the aid of the local official boards. And when the apportionment is made, it may compel the necessary taxes to be levied for the payment of any award. It is not uncommon to provide for such apportionment by general law.3

In the preceding chapter the constitutional provisions of a number of the states are referred to, which require state taxation of property to be by value. The judicial decisions are also cited, which hold that the local levies, commonly known under the head of assessments, though laid under the taxing power, are not taxes in the technical sense of that term as it is commonly employed in state constitutions, and that therefore they may be laid by some other standard than that of value, if the legislature shall so prescribe. The standard more often established than any other is one which seeks to put upon each item of property a tax proportioned to the special benefit it is to receive from the expenditure. There are two general methods of making the apportionment between individuals, the one or the other of which is prescribed as is thought most just and equal. The first is, the appointment of assessors or commis

1 See Laramie Co. v. Albany Co., 92 U. S., 307, where it was held that a county which was largely indebted, and from which another county had been set off, could not, after paying the debt, maintain an action against the new county for contribution.

2 Bristol v. New Chester, 3 N. H., 524; Londonderry v. Derry, 8 N. H., 320; Willimantic v. Windham, 14 Conn., 457; Hartford Bridge Co. v. East Hartford, 16 Conn., 149, 172; Granby v. Thurston, 23 Conn., 416; Montpelier v. East Montpelier, 29 Vt., 12, 20; Milwaukee v. Milwaukee, 12 Wis., 93; State v. Rice, 35 Wis., 178; Bowdoinham v. Richmond, 6 Greenl., 112; Marshall County Court v. Calloway County Court, 2 Bush, 93; Richland County v. Lawrence County, 12 Ill., 1; Borough of Dunmore's Appeal, 52 Pa. St., 374; Sedgwick County v. Bunker, 16 Kan., 498.

3 See Marathon v. Oregon, 8 Mich., 372. As to what is a "fund due" on the division of a municipality, see Jasper v. Sheridan, 47 Ia., 183. On the creation of a new district by the union of two, the property of both becomes its property. It has no power to bargain and pay over to the old district the value of its school-house, or to levy a tax for the purpose. Bacon v. School District, 97 Mass., 421.

sioners empowered to examine the district and apportion the tax according as they shall find that benefits will be received. The second is a determination by the legislature itself that the benefits will be in proportion to value, area or frontage, and apportionment accordingly. In another place it is shown that either course may be admissible.'

General principles of apportionment. The principles by which the legislative apportionment of taxes is to be tested have been so admirably stated in a Kentucky case, that we prefer quoting the language of the court in preference to any attempt at stating them in words of our own: "When shall a tax be levied? To what amount? Shall it be a capitation or property tax? Direct or indirect? Ad valorem or specific? And what classes of property are the fittest subjects of taxation? are all questions wisely confided by our constitution to the discretion of the legislative department, subject to no other limitation than that of the moral influence of public virtue or responsibility to public opinion. But in some other respects, and so far as the power of taxation may be effectual without being thus limited, it is in our opinion limited by some of the declared ends and principles of the fundamental laws. Among these political ends and principles, equality, as far as practicable, and security of property against irresponsible power, are eminently conspicuous in our state constitution. An exact equalization of the burdens of taxation is unattainable and utopian. But still there are well defined limits within which the practical equality of the constitution may be preserved, and which, therefore, should be deemed impassable barriers to legislative power. Taxation may not be universal, but it must be general and uniform. Hence, if a capitation tax be laid, none of the class of persons thus taxed can be constitutionally exempt upon any other ground than that of public service; and if a tax be laid on land, no appropriation land within the limits. of the state can be constitutionally exempted, unless the owner be entitled to such immunity on the ground of public service. The legislature, in the plenitude of the taxing power, cannot have constitutional authority to exact from one citizen, or even

1 See ch. XX.