precedent, the federal constitution requires all bills for raising revenue to originate in the house of representatives,' and there are corresponding provisions in the constitutions of nearly one-half the states. While such provisions are of little or no importance in this country, where the members of both branches of the legislature are equally responsible to the people, the requirement that executive officers shall confine themselves strictly to executive duties is one of the most valuable principles of the government. Indeed, the division of the powers of government is the most important of the checks and balances by means of which the benefits of orderly government are secured and perpetuated; and the least encroachment by one department on the powers of the other is usurpation, for which the law is supposed to provide the adequate remedy. Executive and ministerial officers enforce the tax laws; but, in doing so, they must keep strictly within the authority those laws confer, and they cannot add to or vary, in the slightest degree, any tax lawfully levied. They neither

revenue laws, in a number of the states that term is seldom made use of as applying to the laws of the state for the corresponding purpose. There is no substantial difference, however, in the meaning of the two terms, tax laws and revenue laws. In Peyton v. Bliss, 1 Woolw., 170, 173, Mr. Justice Miller says: 66 Any law which provides for the assessment and collection of a tax to defray the expenses of the government is a revenue law. Such legislation is commonly referred to under the general term 'revenue measures,' and those measures include all the laws by which the government provides means for meeting its expenditures. I can imagine no definition of a government revenue which would not include all the money raised by any form of taxation." But an act imposing a penalty which goes to the government is not for that reason merely a revenue law. Revenue laws are those laws only whose principal object is the raising of revenue, and not those under which revenue may incidentally arise. The Nashville, 4 Biss., 188.

During the second session of the forty-first congress, there was much discussion as to what constituted a bill for raising revenue, but nothing was settled.

2 In the constitutions of Alabama, Arkansas, Delaware, Georgia, Indiana, Kentucky, Louisiana, Massachusetts, Maine, Minnesota, New Hampshire, New Jersey, Oregon, Pennsylvania, South Carolina and Vermont.

3 State v. Bentley, 23 N. J., 532; State v. Flavell, 24 N. J., 370. An assessment made by a treasurer of property omitted from the roll for a former year, being unauthorized by law, is void. Hamilton v. Amsden, 88 Ind., 304. If he takes a note for the tax that should have been assessed, but was not, the note is void. State v. Illyes, 87 Ind., 405. No tax can be levied unless the statute clearly intends it. Stanley v. Mining Co., 6 Col., 415.

have, nor can have, any "roving commission to levy and collect taxes from the people without authority of law, but [they] can only do so in the manner prescribed by the law, which should be the governing rule for their conduct in levying taxes in all cases." 1 So inflexible is this rule, that even the legislature itself, as will be more fully shown hereafter, cannot clothe them with its own authority for this purpose. Where the people have located the power, there it must remain and be exercised.

3

The power not judicial. It is still more manifest that the power to tax is not judicial. "It is the province of the judicial power to decide private disputes between or concerning persons, but of legislative power to regulate public concerns, and to make laws for the benefit and welfare of the state." "The legislative makes, the executive executes, and the judiciary construes the laws." The legislature must therefore determine all questions of state necessity, discretion or policy involved in ordering a tax and in apportioning it; must make all the necessary rules and regulations which are to be observed in order to produce the desired returns, and must decide upon the agencies by means of which collections shall be made. "The judicial tribunals of the state have no concern with the policy of legislation. That is a matter resting altogether in the discretion of another coördinate branch of the government. The judicial

1 Barlow v. The Ordinary, 47 Ga., 639, 642, per Warner, Ch. J.; Vail v. Bentley, 23 N. J., 532. A city has no power to employ as collector any one but the officer upon whom the law imposes the duty. Fort Wayne v. Lehr, 88 Ind., 62. A county treasurer charged by law with the duty of collecting county taxes cannot be empowered by the county board to employ counsel to assist him. Miller v. Embree, 88 Ind., 133.

2 See the next chapter. The legislature cannot confer upon a state board a discretionary authority to add to the amount which the statute authorizes to be collected by state tax. Houghton v. Austin, 47 Cal., 646. And in Tennessee it has no power to delegate the right to tax to any but municipal corporations. Waterhouse v. Public Schools, 8 Heisk., 857; S. C., 9 Bax.,

400.

3 Richardson, Ch. J., in Merrill v. Sherburne, 1 N. H., 199, 204.

4 Marshall, Ch. J., in Wayman v. Southard, 10 Wheat., 1, 46. See Greenough v. Greenough, 11 Pa. St., 489, 494; Bates v. Kimball, 2 Chip., 77; Newland v. Marsh, 19 Ill., 376, 382; Beebe v. State, 6 Ind., 501, 515; Jones v. Perry, 10 Yerg., 59, 69; People v. Supervisors of New York, 16 N. Y., 424,

1

power cannot legitimately question the policy or refuse to sanction the provisions of any law not inconsistent with the fundamental law of the state." And it is as incompetent for the legislature to confer the power to tax upon the judiciary as upon the executive. If the legislature shall abuse its powers and transcend its legislative functions by the enactment of that which is called a tax law, but which is not such in fact,

1 Redfield, Ch. J., in Powers in re, 25 Vt., 261, 265. See Wheeler v. Plattsmouth, 7 Neb., 270.

2 Hardenburg v. Kidd, 10 Cal., 402. See Bigler v. Sacramento, 59 Cal., 698; Merriwether v. Garrett, 102 U. S., 472; Ketchum v. Railroad Co., 4 Dill., 41; Norris v. Waco, 57 Tex., 635.

"The court of sessions under the constitution can only exercise powers of a judicial character. The legislature is incompetent to confer upon the court any other powers. The assessment of taxes is not a judicial act; it partakes of no element of a judicial character. It is a legislative act; it requires the exercise of legislative power, which for certain governmental purposes in the county may be devolved upon a board of supervisors, but cannot be delegated to any branch of the judicial department." Hardenburg v. Kidd, 10 Cal., 402. In Heine v. Levee Com'rs, 19 Wall., 655, a bill in equity was filed to compel the respondent to levy a tax for the payment of overdue corporation bonds. The bill was dismissed. Miller, J., says, "The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, state or national. In the case before us the national sovereignty has nothing to do with it. The power must be derived from the legislature of the state. So far as the present case is concerned, the state has delegated the power to the levee commissioners. If that body has ceased to exist, the remedy is in the legislature, either to assess the tax by special statute, or to vest the power in some other tribunal. It certainly is not vested, as in the exercise of an original jurisdiction, in any federal court. It is unreasonable to suppose that the legislature would ever select a federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the federal government of the legislative functions of the state government. It is a most extraordinary request; and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee." See, further. Merriwether v. Garrett, 102 U. S., 472; United States v. New Orleans, 2 Woods, 230.

Where the legislature, through a failure to levy, leaves property free from taxation, and provides no means for an assessment, the courts cannot remedy the omission. State v. Mobile Co., 73 Ala., 65. See Rees v. Watertown, 19 Wall., 107. There can be no valid tax under an unconstitutional law. Brown v. Denver, 7 Col., 305. The legislature must prescribe the rule of taxation, and cannot leave it to the local authorities. State v. Hudson, 37 N. J., 12.

then indeed the abuse may be arrested by the judicial arm;1 but the interference does not proceed on the idea of any authority of the judiciary over the subject of taxation. The judiciary interposes on the application of any party whose rights are threatened by an unlawful exercise of authority; and it is immaterial with whom or what department the unlawful action originates, or by what name it is designated. But so long as the legislation in form and substance conforms to the constitution, and is not colorable merely, but is confined to the enactment of what is in its nature strictly a tax law, and so long as none of the constitutional limitations are exceeded, or the constitutional rights of the citizen violated in the directions prescribed for enforcing the tax, the legislation is of supreme authority, and the courts, as well as all others, must obey. Taxes may be, and often are, oppressive to the persons and corporations taxed; they may appear, to the judi

1 Maltby v. Reading, etc., R. R. Co., 52 Pa. St., 140, 145. See Gault's Appeal, 33 Pa. St., 94; N. Y. & Erie R. R. Co. v. Sabin, 26 Pa. St., 242; Wharton v. School Directors, 42 Pa. St., 358; Brodnax v. Groom, 64 N. C., 244; Pullen v. County Commissioners, 66 N. C., 361; McCullough v. State of Maryland, 4 Wheat., 316, 428; Providence Bank v. Billings, 4 Pet., 514, 563; Veazie Bank v. Fenno, 8 Wall., 533, 548; Heine v. Levee Commissioners, 19 Wall., 655; People v. Brooklyn, 4 N. Y., 419; Weber v. Reinhard, 73 Pa. St., 370; Sharpless v. Mayor of Philadelphia, 21 Pa. St., 147; Bank of Pennsylvania v. The Commonwealth, 19 Pa. St., 144; Perkins v. Milford, 59 Me., 315, 318, per Appleton, Ch. J.; De Pauw v. New Albany, 22 Ind., 204; Gibson v. Mason, 5 Nev., 283; Waters v. State, 1 Gill, 302; Alcorn v. Hamer, 38 Miss., 652, 751; King v. Portland, 2 Or., 154; Blackwell on Tax Titles, 4th ed., ch. 1, and cases cited. "The courts have no more power to assess, or command the assessment of, taxes than the legislature has to adjudge or command the adjudication of lawsuits." Reese, J., in Justices of Cannon County v. Hoodenpyle, 7 Humph., 145, 147. The case was one of an application for mandamus to compel the county court to levy a tax to pay county debts. And see Delaware R. R. Tax., 18 Wall., 206.

A court may cut down an assessment if it exceeds the legal or constitutional limit, but if it does not, it cannot assume the functions of the assessors by reducing the assessable value, nor by including omitted property which was taxable. Its functions are, not to value or assess, but simply to decide whether the rate is in excess; at that point its functions cease. And it has no more power to equalize assessments than to make them. Ketcham v. Railroad Co., 4 Dill., 41. To same effect is Kansas, etc., R. Co. v. Ellis County, 19 Kan., 584. Regular action of a board of supervisors in matters of taxation is not subject to any review in the courts. Bixler v. Sacramento County, 59 Cal., 698.

cial mind, unjust and even unnecessary, but this can constitute no reason for judicial interference.1

Tax legislation may be colorable merely, either because the purpose for which the tax is demanded is not a public purpose, or because of the absence of some other essential element in taxation. When that is the case, the judiciary is the efficient check, and it must protect individuals and protect the public against what, in such a case, would be an attempt at lawless exactions.2

In some of the states the county courts or county justices are empowered to make the county levies. But these, although exercising inferior judicial functions, are really administrative boards, possessing an authority corresponding to that which is exercised in other states by county commissioners or boards of supervisors. Their action in ordering taxes is quasi legislative, and governed by the same rules as other legislative action.

In some states, also, tax proceedings are reviewed and confirmed by the courts before any sales of property are ordered or demands conclusively fixed against individuals. But this

1 See Veazie Bank v. Fenno, 8 Wall., 533, 548, per Chase, Ch. J.; Weston v. Charleston, 2 Pet., 449, 466, per Marshall, Ch. J.; Delaware Railroad Tax, 18 Wall., 206; Davidson v. New Orleans, 96 U. S., 97; Williams v. Cammack, 27 Miss., 209; State v. Bell, 1 Phil. (N. C.), 76, 85; Bridge Proprietors v. State, 21 N. J., 384, 383; S. C. on appeal, 22 N. J., 593; Dailey v. Swope, 47 Miss., 367; State v. Rainey, 74 Mo., 236; Merriwether v. Garrett, 102 U. 472.

S..

2 Tyson v. School Directors, 51 Pa. St., 9; Covington v. Southgate, 15 B. Monr., 491, 498; Tide Water Co. v. Costar, 18 N. J. Eq., 518; Hammett v. Philadelphia, 65 Pa. St., 146; S. C., 3 Am. Rep., 615; Weismer v. Douglass, 64 N. Y., 91; Turner v. Althaus, 6 Neb., 54; Sedgw. Stat. and Const. Law, 414. On this clear principle, that the power to tax was legislative and not judicial, and that the valuation of property for the purposes of taxation was an incident to the taxing power, it was held in Auditor of State v. Atchison, etc., R. R. Co., 6 Kan., 500, that the supreme court could not be made an appellate tribunal to review the valuations of railroad property made by the board of county clerks.

The sale of land to satisfy a void street assessment which the legislature has unconstitutionally attempted to validate would be void as taking property without due process of law. Brady v. King, 53 Cal., 44.

Neither the constitution of the United States, nor that of South Carolina, inhibits the legislature from passing an act taking from the citizen an existing remedy by prohibition to stay the collection of taxes illegally assessed upon his property. State v. Gurney, 4 S. C., 520.