from one county, the entire revenue for the whole commonwealth. Such an exaction, by whatever name the legislature might choose to call it, would not be a tax, but would be, undoubtedly, the taking of private property for public use, and which could not be done constitutionally without the consent of the owner or owners, or without retribution of the value in money.

"The distinction between constitutional taxation and the taking of private property for public use by legislative will may not be definable with perfect precision. But we are clearly of the opinion, that whenever the property of a citizen shall be taken from him by the sovereign will, and appropriated without his consent to the benefit of the public, the exaction should not be considered as a tax unless similar contributions be made by that public itself, or shall be exacted rather by the same public will from such constituent members of the same community generally as own the same kind of property.

"Taxation and representation go together. And representative responsibility is one of the chief conservative principles in our form of government. When taxes are levied, therefore, they must be imposed on the public in whose name and for whose benefit they are required, and to whom those who impose them are responsible. And although there may be a discrimination in the subjects of taxation, still persons in the same class, and property of the same kind, must generally be subjected alike to the same common burden. This alone is taxation according to our notion of constitutional taxation in Kentucky. And this idea, fortified by the spirit of our constitution, is, in our judgment, confirmed by so much of the twelfth section of the tenth article as declares, 'Nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.'" 1

Apportionment presumptively just. Whatever the rule of apportionment that is thus established by legislation, it is pre

1 Robertson, Ch. J., in Lexington v. McQuillan's Heirs, 9 Dana, 513, 516. See, also, Youngblood v. Sexton, 32 Mich., 406. The sentence quoted from the constitution, however, while it formulates a general idea in constitutional law, has special reference only to the eminent domain. Martin v. Dix, 52 Miss., 53.

sumptively as just and equal in the opinion of the legislature as the circumstances would permit. It is not, therefore, to be questioned on any grounds of policy, and it cannot be set aside on any showing that in particular cases its operation is unjust.'

Apportionment imperative. But the requirement of apportionment is absolutely indispensable in any exercise of the power to tax. There can be no such thing as valid taxation when the burden is laid without rule, either in respect to the subjects of it or to the extent to which each must contribute. In this respect the legislature is as powerless as any subordinate authority, it being impossible there should be taxation

1 As to diversity in apportionment, see Anderson v. Kerns Draining Co., 14 Ind., 199; Layton v. New Orleans, 12 La. An., 515; Wallace v. Shelton, 14 La. An., 498. Taxation of merchants by sales is not unequal. Sacramento v. Crocker, 16 Cal., 119. See ch. XVIII. That the courts can afford no relief for what is merely an unwise apportionment, see Tallman v. Butler County, 12 Ia., 531.

That a license tax may be apportioned in reference to the size of the town in which the privilege is to be exercised, see State v. Schlier, 3 Heisk., 281. A peculiar case of apportionment was that in Ould v. Richmond, 23 Grat., 464. The tax was a license tax on lawyers, who were classified in six classes by the finance committee of the common council, and the tax was different in the several classes. The tax was sustained against an objection to its inequality. The classification seems to have had in view the value of the privilege the license gave, the extent of the business, the income, etc.

In Berney v. The Tax Collector, 2 Bailey, 654, 681, O'Neill, J., in speaking to objections which were made to a tax on bank dividends, says: It may be that the tax on the dividends may operate unequally in that it is virtually a tax on money at interest, which is not generally subjected to taxation. This objection, however, is not addressed to the proper forum; it belongs to the legislature, not to the judiciary, to decide on its propriety and force. The legislature may select any property they please, to be taxed. If the tax is to operate generally on every citizen who may own the property declared liable to it, it would be constitutional. If an act purports to exempt one class of citizens, owning property upon which it imposes a tax in the hands of others, it might be a discriminating tax, and unconstitutional." In Youngblood v. Sexton, 32 Mich., 406, a tax on business was objected to because the sum levied was uniform and did not discriminate according to the business done; but the court say, this is clearly within the power of the legislature, who must determine conclusively whether this method is or is not more just and politic than any other.

2 Henry v. Chester, 15 Vt., 460; Tide Water Co. v. Coster, 18 N. J. Eq., 518, per Beasley, Ch. J.

that is at once arbitrary and valid.' Whenever, therefore, the tax is to be levied upon property, agencies for its apportionment by the prescribed rule are as indispensable as the rule itself. And the duty they have to perform is, to make the sum demanded of any one person or laid upon any one parcel of property have some fixed ratio, not only to the whole tax, but also to that demanded of every other person, or laid upon every other piece of property. Without this, as has been forcibly said, the exactions of money for the public are mere forced contributions, and taxation will differ from the eminent domain. only in this: that the latter demands the property of the citizen when necessity requires it, and on making compensation, while the former exacts it at discretion and without compensation.2 In respect to the apportionment of taxes in general, after the subjects of taxation have been determined upon, the following may be stated as general principles:

1. The taxing district through which the tax is to be apportioned must be the district which is to be benefited by its collection and expenditure. The district for the apportionment of a state tax is the state, for a county tax the county, and so on. Subordinate districts may be created for convenience, but the principle is general, and in all the subordinate districts the rule must be the same.

1 A legislative act which is in effect a selection of individuals from a general class for taxation is not to be sustained by showing that it is no more onerous a burden than they ought to bear; "this fact does not affect the question of legislative power and cannot give validity to the act." Albany, etc., Bank v. Maher, 9 Fed. Rep., 884. See Stuart v. Palmer, 74 N. Y., 183. An act of legislation excluding certain lands from the established limits of a drainage district and exempting them from future drainage assessments is void. "The improvement necessary or indispensable to, and undertaken by, a district, must be not merely commenced, but executed either in whole or in part by the entire district. Unless or until all are released by the execution or failure of the undertaking, or― according to circumstances — by the satisfaction of the full or proportionate share of their liability, all are and remain bound." New Orleans Canal, etc., Co. v. New Orleans, 30 La. An., 1371.

2 Christiancy, J., in Woodbridge v. Detroit, 8 Mich., 274, 309, following and approving Lexington v. McQuillan's Heirs, 9 Dana, 513. Compare State v. Portage, 12 Wis., 562; Weeks v. Milwaukee, 10 Wis., 242, 258; Chicago v. Larned, 34 Ill., 203; Creote v. Chicago, 56 Ill., 422; Weller v. St. Paul, 5 Minn., 70; Wilson v. Supervisors of Sutter, 47 Cal., 91.

2. The basis of apportionment which is fixed upon by the general rule must be applied throughout the district. There cannot be two rules of apportionment for the same tax in the same district; if there could be, there might be any number, and in effect there would be none at all, and every man might. be assessed arbitrarily.2

1 When a city is part of a township, it is not competent for the legislature to exempt its inhabitants from the payment of township taxes for highway purposes. O'Kane v. Treat, 25 Ill., 458. See for a similar case, Fletcher v. Oliver, 25 Ark., 289.

2 Tide Water Co. v. Coster, 18 N. J. Eq., 518. In Wilson v. Supervisors of Sutter, 47 Cal., 91, it was held incompetent to authorize the supervisors to remit a levee tax on part of the district. And yet it would have been competent originally to so bound the district as to exclude the part on which it was proposed to remit the tax.

That the basis of the apportionment is not necessarily the same for general and local taxes, even when value is the standard, is illustrated by the case of Insurance Co. v. Baltimore, 23 Md., 296. It appears from that case that for the purposes of an apportionment of state taxation among the municipal divisions, the nominal capital of private corporations was assumed to be the value. But in imposing the tax on the corporations themselves, or their members, the actual value was ascertained. This method would be likely to lead to some inequalities in the distribution of state taxation between districts, but they could not be serious.

In this connection may be mentioned several cases in which classes of taxable property were attempted to be relieved from the apportionment. In one of these, the personal property was not to be taxed for the payment of a city debt, for the reason, probably, that the purpose for which the debt was contracted was supposed to have benefited specially the real estate. Gilman v. Sheboygan, 2 Black, 510.

Others were where, in assessing the real estate for municipal taxes, the value of improvements was required to be excluded. In all these cases, the discrimination has been held to be beyond the constitutional power of the legislature. If the tax is to be assessed for a corporate purpose, it must be uniform as to persons and property. The burden must be imposed upon all the property within the limits to be taxed. Any other rule would utterly destroy the equality and uniformity contemplated by the constitution. If personal property or improvements may be exempted, with the same propriety and justice the law might compel one-half the real estate within the district to sustain the whole burden. Thornton, J., in Primm v. Belleville, 59 Ill., 142, 144; Hale v. Kenosha, 29 Wis., 599. The tax in the Wisconsin case was for a railroad debt; in the other for a sewer. In Baltimore v. Hughes, 1 G. & J., 480, where a city council had authority to levy a tax for a public improvement on the district benefited thereby, it was held that if the ordinance providing for the tax showed the improvement to be for the general benefit of the city, and not of the particular district in which the tax was ordered, the tax was void.

3. Though the apportionment must be general, a diversity in the methods of collection violates no rule of right, and is as much admissible as a diversity in police regulations. Indeed, diversity in this regard may, under some circumstances, be an absolute necessity. Of this the country had illustrations in the case of federal taxes during the late civil war. The taxes under internal revenue laws were laid by general rules, but special regulations were required for their enforcement in insurrectionary districts, and were therefore provided. So the federal land tax might be assumed by one state, while in another it might be necessary to have elaborate provisions for the sale of the property taxed.

4. It is no objection to a tax that the rule of apportionment which has been provided for it fails in some instances, or even in many instances, of enforcement. Evasions of duty are liable to occur under all laws; but an evasion by one individual cannot give another a legal right to be excused. If the law establishes a uniform rule, its validity cannot depend upon the certainty or uniformity of its enforcement.1

5. The apportionment of the tax is not to be extended to embrace persons or property outside the district. This is a matter of jurisdiction, and if there are any exceptions to the rule they must stand on very special and peculiar reasons.2

6. Although exemptions may be made, as has been previously shown, special and invidious discriminations against individuals are illegal. This, so far as we know, is not disputed; and there is plausible ground for at least a question, whether the

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1 In United States v. Riley, 5 Blatch., 204, 209, Shipman, J., speaking of the internal revenue law, says: The law is uniform, and thereby conforms to the constitution. Its validity does not depend on the celerity or uniformity with which it can be executed in some disturbed districts of the country. Tax laws, both state and national, are required to be uniform. This is an elementary principle of legislation, resting upon the solid foundation of justice. But it is a novel doctrine that a law, uniform in its provisions, can be annulled by the refusal of a portion of those on whom it is designed to operate to comply with its provisions. If this notion were to prevail, civil commotion or foreign invasion within a small district of the country would paralyze the government and repeal the fundamental law upon which its existence depends."

2 See ante, pp. 14, 42.

3 The rule of uniformity applies to wharf and dockage charges laid on the commerce of a city. People v. S. Fr., etc., Railroad Co., 35 Cal., 606.