tion already mentioned, that when municipal corporations under competent authority have contracted debts, having at the time power to tax for their payment, the creditors have a right to rely upon this power for their security, and it cannot afterwards be so far restricted as to prejudice their demands.' The most common of the express restrictions on the municipal power to tax is one limiting the amount or the rate that can be imposed in any one year. A municipal levy in disre gard of the restriction is void.?

The legislature, in the plenitude of its power in matters of

to tax may be taken away by the legislature even after the tax has been levied. Augusta v. North, 57 Me., 392.

1 See ante, p. 76, and cases cited. Also, Wolff v. New Orleans, 103 U. S., 358; Louisiana v. Pillsbury, 105 U. S., 278; Gibbs v. Green, 54 Miss., 592.

It has been decided that when by constitutional limitation a city is restricted to a certain per cent. on the valuation at the time when city bonds are voted and sold, it is not competent subsequently to so direct the taxing power of the city to other objects as to prevent payment of interest on the bonds. If the taxing power will not produce enough for all purposes, the proceeds should be shared pro rata. Sibley v. Mobile, 3 Woods, 535.

2 State v. Humphreys, 25 Ohio St., 520; State v. Strader, 25 Ohio St., 527; Dean v. Lufkin, 54 Tex., 265; Witkowski v. Bradley, 35 La. An., 904. In Arkansas it has been held that an excessive levy cannot be sustained even as to the amount that might legally have been voted (Worthen v. Badgett, 32 Ark., 494); though when the levy is brought up on certiorari, it will be quashed only as to the excess. Vance v. Little Rock, 30 Ark., 435. In Nebraska the submission to popular vote of the question whether a levy should be made in excess of the legal limit is void. Burlington, etc., R. Co. v. Clay Co., 13 Neb., 367. And so would the levy be if made, even though the purpose was to pay previous indebtedness. State v. Gosper Co. Com'rs, 14 Neb., 22.

In New Hampshire an excessive tax is held void for the excess only. Taft 2. Barrett, 58 N. H., 447. In Kansas, where a county tax was limited to ten mills a year, a tax of eighteen mills for the current expenses of prior years it was held should not be wholly enjoined, the court saying: "It may be that in those years only a small amount of tax was levied, and if so, the county may levy an additional amount for those years, provided the two levies for any one year do not exceed ten mills." Commissioners v. Blake, 19 Kan., 298 See on the general subject, State v. Van Every, 75 Mo., 530; Cummings v. Fitch, 40 Ohio St.,

56.

The general laws of Iowa do not limit the power of a city to tax so that, after levying ten mills for general city purposes and road purposes, it cannot levy a tax to pay a judgment against it. Rice v. Walker, 44 Ia., 458. A limitation as to one purpose which is specified is not a limitation as to others. Brocaw v. Gibson Co., 73 Ind., 543.

taxation, may of course make special exceptions, so as to authorize the incurring of particular obligations which will require taxation in excess of the general limitation to provide for them.1

The General Restriction. But the most important, and perhaps the most effective, restriction of all is the rule of law which requires all municipal organizations or boards to show the grant of any authority they may assume to exercise. Towns, it has been said—and the remark applies to all such organizations are corporations of limited powers; they cannot vote and assess money upon the inhabitants for all purposes indiscriminately, but must be confined to the established powers of towns, as settled by positive enactment or by well defined and ancient usage. They cannot, therefore, tax ex

1 United States v. New Orleans, 98 U. S., 381; Wolff v. New Orleans, 103 U. S., 358. Where the power to tax is limited generally, a special act empowering the levy of a railroad aid tax to that extent enlarges it. Quincy v. Jackson, 113 U. S., 332. See Butz v. Muscatine, 8 Wall., 575; Commonwealth v. Pittsburgh, 34 Pa. St., 496; Commonwealth v. Alleghany Co., 40 Pa. St., 348.

The constitution of Missouri contained a restriction upon school district taxation, but provided that for the purpose of erecting public buildings the rate limited might be increased when the rate of increase should have been submitted to a vote of the people, etc. Such a provision is not self-executing, but requires legislation for its enforcement. St. Joseph Board, etc., v. Patten, 62 Mo., 444.

2 Shaw, Ch. J., in Cushing v. Newburyport, 10 Met., 508, 510. There is a very valuable statement in this case of the power of towns in respect to schools, and its history. For a history of the legislation of Michigan territory and state on the same subject, and the powers of the districts, see Stuart v. School District, 30 Mich., 69.

As to the right to establish free schools in a particular district of a state by a statute which leaves the final decision to the voters of the district, see Bull v. Read, 13 Grat., 78. The right to refer such questions to the voters of the locality was also affirmed in Slack v. Railroad, 13 B. Monr., 1, 9, 28: Stein v. Mobile, 24 Ala., 591, and numerous other cases. The legislature may, in its discretion, create independent school districts without the assent of the residents, and authorize a board chosen by its voters to make an annual levy for the erection of buildings and the support of schools therein. Kuhn v. Board of Education, 4 W. Va., 409. That a school district tax is not within a statute which limits the amount of a tax for town and county purposes, see Taft v. Wood, 14 Pick., 362; Goodrich v. Lunenburg, 9 Gray, 38, 40; Blickensderfer v. School Directors, 20 Pa. St., 38.

cept for the very purposes allowed by law, and in the manner and under the conditions prescribed by law.'

Exhausting authority. The taxing power once conferred is presumptively continuous, and to be exercised again and again as often as may be required by the exigencies of government and as often as may be consistent with the act of delegation. But custom has much to do with the construction of such powers, and sometimes a single exercise must be deemed to exhaust the power for the time being, when the custom is to tax but once within a certain period of time; as, for instance, within the year. And this is the general custom in the case of local taxes. If the amount of tax which by law can be im

1 A tax voted to build a school-house on a site not legally designated is invalid; that being a condition precedent. Marble v. McKenney, 60 Me., 332. Where the statute required assessors, before assessing any school district tax, to determine in which district the lands of persons residing out of the town should be taxed, and to certify their determination to the town clerk, who was to record the same, held, that an assessment without complying with this requirement was invalid, and an inhabitant of the district might avail himself of the defect. The determination, it will be seen, was really as to what should be the limits of the district. Taft v. Wood, 14 Pick., 362. See, also, Rawson v. School District, 100 Mass., 134. By statute a town was not to be redistricted oftener than once in ten years, "so as to change the taxation of lands of proprietors." A tax levied in a new district established in violation of this provision is void. Gustin v. School District, 10 Gray, 85. See Holmes v. Baker, 16 Gray, 259.

Where supervisors have power to levy a tax only at their regular session, if that session is finally adjourned, and they then come together, change their record to make it show a temporary adjournment, and vote a tax, the vote is void. Scott v. Union Co., 63 Ia., 583.

2 See Municipality v. Dunn, 10 La. An., 57; Williams v. Detroit, 2 Mich., 560.

3 See State v. Van Every, 75 Mo., 530; Cummings v. Fitch, 40 Ohio St., 56; Vance v. Little Rock, 30 Ark., 435.

A school board having power to levy a tax not exceeding one per cent. in one year, held that when they ordered a tax, though below the maximum, they had exhausted their power for the year. Oliver v. Carsner, 39 Tex., 396. So in Oregon it has been decided that after one assessment of all the taxable property has been made and returned, and the tax levied thereon, there is no power to make a new assessment in order to reach property which has been brought within the district since the regular assessment. Oregon Steam Nav. Co. v. Portland, 2 Or., 81. But an omission of the county court to exact license taxes when making the general levy does not preclude requiring them afterwards. State v. Maguire, 52 Mo., 420.

In Texas it is held that if a commissioners' court which has exhausted its

It

posed for the year is already levied, the authority is of course exhausted, and a further levy under any pretense is void.' is of no legal importance that the first levy which exhausted the power was made under the compulsion of judicial mandamus. But an abortive attempt to make an assessment does not exhaust the power, and if no other obstacle exists, the officers may disregard the futile action and proceed anew.3

authority in making a levy for ordinary purposes makes an additional levy in part for the same purpose, the whole is void. Dean v. Lufkin, 54 Tex., 265. A limitation for one purpose is not a limitation as to others. Brocaw v. Gibson County, 73 Ind., 543. A railroad aid tax being limited to five per cent., a county cannot, after voting that to one road, make a further vote to another. Dumphy v. Supervisors, 58 Ia., 273.

1A city had authority to levy taxes not exceeding fifteen mills on the dollar for the year. An ordinance was passed levying a tax to that extent. Afterwards one was passed for levying two mills additional for sinking fund. Held, that the first was valid and the last void. Had the whole been voted in one ordinance, it seems the whole would have been void. Cummings v. Fitch, 40 Ohio St., 56. But perhaps it might be sustained if the amount actually levied did not exceed the legal limit. People v. Cooper, 10 Ill. App., 384.

When the amount of school-house fund tax is limited to ten mills, a further tax to pay a judgment against the school district cannot be levied, although there is a provision that where a judgment has been obtained against the school district the board shall pay it by an order, the payment of which is to be provided for by the district meeting. Sterling, etc., Co. v. Harvey, 45 Ia., 466. See for a similar point, Commissioners of Osborne Co. v. Blake, 25 Kan., 356.

2 Vance v. Little Rock, 30 Ark., 435.

3 Himmelman v. Cofran, 36 Cal., 411, citing Pond v. Negus, 3 Mass., 230; Libby v. Burnham, 15 Mass., 144; Bangor v. Lancy, 21 Me., 472. On the general subject see, also, Woodruff v. Fisher, 17 Barb., 224; Howell v. Buffalo, 15 N. Y., 512; People v. Haines, 49 N. Y., 587; Lappin v. Nemaha County, 6 Kan., 403.

CHAPTER XII.

LISTING OF PERSONS AND VALUATION OF ESTATES FOR TAX. ATION.

General course. When taxes for any particular district have been lawfully voted, it next becomes necessary, before a tax can become a charge upon either person or property, that a list of taxables should be made by the officer to whom by law that duty is intrusted. If the tax to be laid is a capitation tax, nothing more may be needful; but capitation taxes are so few and so unimportant that they scarcely call for more than a passing remark. But when taxes are to be apportioned among the taxables in proportion to the value of property, or according to special benefits, or upon the results of business, it becomes requisite that an official estimate should be made. for that purpose. This estimate, when made under state laws, is commonly called an assessment, and the completed document is given the name tax list or assessment roll, or something equally significant and indicative of its nature. Under state laws general levies are most commonly made upon an assessment by the value of property, and it is of such an assessment that we shall speak in this chapter.

An assessment, strictly speaking, is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. It does not, therefore, of itself lay the charge upon either person or property, but it is a step preliminary thereto, and which is essential to the apportionment. As the word is more commonly employed, an assessment consists in the two processes of listing the persons, property, etc., to be taxed, and of estimating the sums which are to be the guide in an apportionment of the tax between them. When this listing and estimate are completed in such form as the law may have prescribed, nothing remains to be done, in order to determine the individual liability, but the mere arithmetical

1 Wells v. Smyth, 55 Pa. St., 159; Geren v. Gruber, 26 La. An., 694; Rood v. Mitchell Co., 39 Ia., 444; Perry Co. v. Railroad Co., 58 Ala., 456.