stance, all mere technical defects and informalities should be disregarded.1

Conclusiveness of Municipal Action. In all legal proceedings, after proper evidence is given of municipal action, it is always to be assumed that the municipality, whether represented by its people or by its official board, has acted wisely and well upon all matters of policy and of discretion which have been submitted to it, and that the conclusion was warranted by the facts and circumstances which were the basis of its action. The courts have no power to review their action, so long as they are found to have kept within the limits of their authority. The legislature, which gives and recalls at pleasure the power to tax, may do so, but not the courts.

A learned and able court has spoken very clearly and pointedly concerning the absence of power in the judicial tribunals to entertain appeals from the municipal bodies, in the exercise of their discretionary power to tax. The case was one in which the attempt was made to enjoin school directors from the levy of a tax regularly voted. "No such appeal lies, for none is given by law. Most of our tax laws entitle the citizen

should have been certified to them for the year before. Weber v. Railway Co., 108 Ill., 451, citing Lebanon v. Railway Co., 77 Ill., 539. In Michigan it has been held that if the officer to whom the tax should be certified has no authority or discretion in the case, and he actually proceeds to levy the tax without the proper certificate, the failure to transmit it ought to be held the neglect of a mere formality, and the tax sustained. Smith v. Crittenden, 16 Mich., 152. See Upton v. Kennedy, 36 Mich., 215; Iowa R. R. Land Co. v. Carroll Co., 39 Ia., 151; Union Trust Co. v. Weber, 96 Ill., 346. But as to this see Matteson v. Rosendale, 37 Wis., 254; Powell v. Supervisors, 46 Wis., 210; Cairo, etc., R. Co. v. Parks, 32 Ark., 131; Worthen v. Badgett, 32 Ark., 496; Hodgkin v. Fry, 33 Ark., 716.

1 West v. Whitaker, 37 Ia., 598; Snell v. Fort Dodge, 45 Ia., 564. Where a clerk was required to certify the "aggregate amount" of the tax required to be levied, it is enough if he certifies that the necessary amount of taxes was a certain per cent. on the taxable property of the town. This gives information sufficiently definite, and the form of words is immaterial. Gage v. Bailey, 102 Ill., 11; Burlington, etc., R. Co. v. Lancaster County, 12 Neb., 324. See Dent v. Bryce, 16 S. C., 1; State v. Thompson, 18 S. C., 538; State v. Gadsden County, 17 Fla., 418; Hodgkin v. Fry, 33 Ark., 716. If a certificate for the levy of an agricultural society tax is required to be signed and sworn to by the president and secretary of the society, it is fatally defective if signed and sworn to by one of them only. Hogelskamp v. Weeks, 37 Mich., 422.

to a hearing before he is obliged to pay; not to a judicial hearing, indeed, but to an appeal to some special tribunals, generally the county commissioners; but the school law gives no such appeal. This is the reason why the ear of the courts should be open to well founded complaints on the part of the citizen; but where he has no irregularity, no neglect of duty, no excess of authority to complain of, nothing, indeed, but an indiscreet use of clearly granted discretion, he will vex the judicial ear in vain, for the judicial arm can redress no such wrong. The power power of taxation, altogether legislative, and in no degree judicial, is committed by the legislature, in the matter of schools, to the directors of school districts. If the directors refuse to perform their duties, the court can compel them. If they transcend their powers, the court can restrain them. If they misjudge their power, the court can correct them. But if they exercise their unquestionable powers unwisely, there is no judicial remedy." This is a clear and strong statement of a wise and salutary general principle.

1

When, therefore, a school district, having competent power by statute to do so, determines in due form of law to erect a school-house, no discontented party is to be heard to allege, as a basis for legal relief, that the building was unnecessary or the cost too great, or that in any other particular the action taken was unwise or impolitic. It is conclusive that it has been decided upon by the competent tribunal; and if the decision was by a meeting of electors, the record of the meeting is conclusive that those who met and voted upon the question were competent to do so.3

Judicial Questions.

It is possible, however, for judicial questions to arise under some tax laws, which must first be

1 Woodward, J., in Wharton v. School Directors, 42 Pa. St., 358, 364.

2 Williams v. School District, 21 Pick., 75; Petition of Powers, 52 Mo., 218; Wharton v. School Directors, 42 Pa. St., 358.

Eddy v. Wilson, 43 Vt., 262. Possibly it might be otherwise if fraud were alleged. The action of a town having authority to buy and improve a cemetery cannot be attacked on grounds of extravagance when the power has not been exceeded. Jenkins v. Andover, 103 Mass., 94. That courts cannot restrict or restrain a power conferred to grant licenses for revenue, see Kniper v. Louisville, 7 Bush, 599; citing Mason v. Lancaster, 4 Bush, 406.

passed upon by the local authorities, but where their decision cannot be final. Many such questions are referred to in later chapters of this work. It has been held in Indiana that where a subscription of a township in aid of a railroad was by law to be made by county commissioners when certain facts appeared, the county commissioners in acting upon the facts were acting judicially, and an appeal would lie from them to the courts;1 but the cases in which such an appeal would be allowable must be very rare.

Restrictions upon municipal taxation. All municipal corporations and bodies are, in respect to the power to tax, under certain restrictions, some of which inhere in the very nature of government, while others are expressly imposed. We have seen already that the states, by virtue of their membership in the Union, are by implication forbidden to lay any tax which would preclude or embarrass any federal agency, or the exercise of any federal power. What the states cannot themselves do, they cannot empower their municipal bodies to do.2 Congress, as to the municipalities within the territories and the District of Columbia, might doubtless give larger powers of taxation than could be conferred by the states, but it is not customary to do so. We have also seen that by implication the powers of taxation that are conferred by the state are so restricted as to preclude the taxation of state agencies and state property. Also that local taxation must be restricted to local purposes. Upon these subjects nothing further need be said here.

But it has been deemed important by the people in many states that they should go further, and impose special restrictions, not only in respect to local taxation, but also in respeet. to state levies; and they have, therefore, done so by their constitutions. Some of these are an absolute negation of taxation for certain purposes; as, for example, to give aid to private

1 County Commissioners v. Karp, 90 Ind., 236.

2 Stuyvesant v. New York, 7 Cow., 588; Illinois Conference Female College v. Cooper, 25 Ill., 148; Haywood v. Savannah, 12 Ga., 404; O'Donnell r. Bailey, 24 Miss., 386.

corporations. Some such restrictions have been deemed necessary to prevent the state, as well as the municipalities, from engaging in wild schemes and speculative or extravagant enterprises, and they fix a limit to power which must be strictly observed. It is also by some constitutions expressly made the duty of the legislature, when it shall create a public corporation and delegate to it the power to tax, to impose restrictions on that power, in order that it may not be abused. One object in all written constitutions is the protection of minorities against oppressive action on the part of majorities. Such oppressive action in the case of the local bodies is not unlikely to consist in the levy of enormous taxes, or the incurring of enormous debts, under the influence of temporary excitements and passions, and perhaps for purposes which cooler reflection would condemn. The mandate that restriction shall be imposed is, therefore, a very proper one; but it is addressed to the discretion of the legislature,2 and there is no extraneous authority to regulate or to enforce its exercise.

1 In some cases a question has arisen whether such a restriction, when imposed in general terms, was a restriction on the state, and also on its municipalities. Without undertaking to classify them, the following are referred to: Slack v. Railroad Co., 13 B. Monr., 1, 16; Dubuque County v. Railroad Co., 4 Greene (Iowa), 1; Clapp v. Cedar County, 5 Ia., 15; State v. Wapello County, 13 Ia., 388; Clark v. Janesville, 10 Wis., 136; Bushnell v. Beloit, 10 Wis., 195; Prettyman v. Supervisors, 19 Ill., 406; Robertson v. Rockford, 21 Ill., 451; Johnson v. Stark County, 24 Ill., 75; Perkins v. Lewis, 24 Ill., 208; Butler v. Dunham, 27 Ill., 474; People v. Chicago, 51 Ill., 17, 34; Richmond v. Scott, 48 Ind., 568; People v. Supervisors, etc., 16 Mich., 254; Bay City v. State Treasurer, 23 Mich., 449, 504. An exemption from "public taxes," held not to be an exemption from taxation for municipal purposes. Morgan v. Cree, 46 Vt., 773; S. C., 14 Am. Rep., 640.

2 People v. Mahaney, 13 Mich., 481, 487. In this case it was decided that the power of a police board to determine what sums should be raised for their purposes was limited, the statute confining the power to the necessary police expenses. And see Paine v. Spratley, 5 Kan., 525; Bank of Rome v. Rome, 18 N. Y., 38; Hill v. Higdon, 5 Ohio St., 243, 248; Northern Ind. R. R. Co. v. Connelly, 10 Ohio St., 159, 165; Maloy v. Marietta, 11 Ohio St., 636. A provision requiring the legislature to restrict the power of municipal taxation is complied with, in an act for a special street assessment, by limiting it to an assessment to the middle of the block upon adjacent property. Hines v. Leavenworth, 3 Kan., 186.

A provision in the constitution giving the legislature authority to restrict the power of cities in taxation and assessments, and to prevent abuses in assessments, will not prevent passing laws to limit the power of courts to set aside assessments. Matter of Mead, 74 N. Y., 216.

Excessive Taxes. It is not incompetent for a municipality having power to levy a tax for a specified purpose to add an item to provide for possible deficiencies in collection.' And in the case of a state levy, if the state officers having authority for the purpose fix upon a percentage on the assessment which in their judgment will actually produce the required amount, the levy is not to be held void, either in whole or in part, because the actual production is somewhat in excess. But where the limit is precisely fixed by law it should not be exceeded, even for the purpose of paying a judgment, unless the judgment was rendered upon a contract, and the contract was one which was entered into before the statutory limit was fixed.3

2

It is neither incompetent nor unusual for the state to confer upon its counties, cities, villages and townships a very general authority to tax for their purposes all the subjects of taxation within their territorial limits as fully as the state itself taxes them. But the power, both as to extent and duration, is during the pleasure of the legislature," subject only to the restric

1 See Hyde Park v. Ingalls, 87 Ill., 11; Vose v. Frankfort, 64 Me., 229; Edwards v. People, 88 Ill., 340; People v. Wiltshire, 92 Ill., 260; Union Trust Co. v. Weber, 96 Ill., 346; People v. Cooper, 10 Ill. Ap., 384.

It is not competent by law to leave to a state board the power to fix the rate of state taxation "after allowing for delinquency in collection," since that would be a delegation of legislative power. Houghton v. Austin, 47 Cal., 646. Compare San Francisco, etc., R. Co. v. State Board, 60 Cal., 12. 2 Edwards v. People, 88 Ill., 340; Union Trust Co. v. Weber, 96 Ill., 346. 3 See Witkowski v. Bradley, 35 La. An., 904. Also Dean v. Lufkin, 54 Tex., 265.

4 Wingate v. Sluder, 6 Jones, L., 552; Durach's Appeal, 62 Pa. St., 491: Cheaney v. Hooser, 9 B. Monr., 330, 339; Augusta v. National Bank, 47 Ga., 562. Authority to assess "all taxable property" embraces all taxable at the time the authority is given, and all made taxable by subsequent legislation. Buffalo v. Le Couteulx, 15 N. Y., 451. A limitation of taxes to a certain percentage of the assessed valuation is enlarged by implication when the legislature authorize the creation of any particular debt, to the extent that may be necessary to meet the demand. Commonwealth v. Commissioners of Alleghany County, 40 Pa. St., 348. See p. 348, n. 1.

5 A general authority given by a city charter to tax property for its purposes does not preclude the state making exemptions within the city afterwards. Richmond v. Richmond & Danville R. R. Co., 21 Grat., 604. If city boundaries are extended after the time for the annual assessment has passed, it is competent to provide for an assessment for the current year of the property newly added. Swift v. Newport, 7 Bush, 37. Compare Waldron v. Lee, 5 Pick., 323; Jackman v. School District, 5 Gray, 413. The right