plaints of land owners, that the taxes were so burdensome as substantially to destroy the value of the land, to be well founded. In strong terms the court affirmed the right of a state to determine for itself the bounds of its municipalities, and to devise its own system of taxation free from federal interference, and that a party is not deprived of his property without due process of law by the enforced collection of taxes by the mere fact that they worked hardship, and produced inequality in particular cases. Fourth, It has been decided to be no unlawful deprivation of property when a resident of one state was compelled by its laws to pay taxes on a debt owed by a non-resident, and secured by mortgage on lands in another state. Fifth, A state statute was sustained which provided for the drainage of any tract of low or marshy land in the state, on proceedings instituted by five or more owners of lots within the tract, and not objected to by the owners of the greater part of the tract, all being given an opportunity for a hearing; and it was held to be no wrongful deprivation of property, and no denial of the equal protection of the laws, to assess the cost of the drainage upon all the owners of lots.3

These cases settle very conclusively the construction of the fourteenth amendment, and decide that the federal courts have no general jurisdiction to prevent oppression under state tax laws, nor to give relief against hardships and inequalities in their workings.

Some decisions of the federal circuit and district courts should be noticed. The right to notice at some stage in the tax proceedings has been strongly affirmed as a constitutional right in one case. The right of corporations to the same protection as individuals is also asserted; and therefore a provision of the constitution of California which subjected railroad mortgages to taxation, while exempting other mortgages, was held repugnant to the fourteenth amendment. A legislative

Kelly v. Pittsburgh, 104 U. S., 78. See Norris v. Waco, 57 Tex., 635. 2 Kirkland v. Hotchkiss, 100 U. S., 491.

3 Wurts v. Hoagland, 114 U. S., 606. See Howe v. Cambridge, 114 Mass., 388.

4 See, in general, the Warehouse Case, Munn v. Illinois, 94 U. S., 443.

5 Santa Clara County v. Sou. Pac. R. Co., 18 Fed. Rep., 385, opinions by Justice Field and Judge Sawyer. See, also, 13 Fed. Rep., 722, and 7 Sawy., 517, 6 San Mateo County v. Sou. Pac. R. Co., 13 Fed. Rep., 722.

validation of an invalid assessment has been held void, as taking away the right to a hearing. So it has been decidedcontrary to the ruling in Kentucky - that a state law is void which discriminates in taxation for its public schools, and taxes only white persons for white schools and colored persons for schools for colored children. A heavy license fee on the disinterment and removal of a dead body from the place of interment has been sustained, though obviously aimed at one class of persons only.3

Questions will no doubt continue to arise under this amendment, but the cases already decided will furnish rules for the determination of most of them.

'Albany City Bank v. Maher, 20 Blatch., 341. Compare In re Van Antwerp, 56 N. Y., 261.

2 Claybrooke v. Owensboro, 16 Fed. Rep., 297.

3 In re Wong Lung Quy, 6 Sawy., 442. Only a person injured by an unlawful discrimination can complain of it. United States v. Jackson, 8 Sawy., 59.

CHAPTER III.

LIMITATIONS OF THE TAXING POWER BY PARAMOUNT LAW.

Great as is the power of any sovereignty to levy and collect taxes from its citizens, it is not in a constitutional country without limitations which are of very distinct and positive nature. Some of these inhere in its very nature, and exist whether declared or not declared in the written constitution; but some of them it is not uncommon to specify, either out of abundant caution, or to keep them fresh in the minds of those who administer the government. Some others in this country spring from the peculiar form of the government, and the relation of the states to the common authority. Still others are expressly imposed, either by state constitution or by that of the Union.

Enforcement of limitations. The nature of some limitations is such that they address themselves exclusively to the legislative department of the government, and what it shall do will be subject to review by no other authority than the people acting in elections. Such, for example, is the limitation that taxes must be determined upon from public motives only, and with the public good in view. It is to be assumed that the legislature will observe it, but whether it has done so can never become a judicial question. In most cases, however, a question whether the limitations upon the taxing power have been observed is or may be a judicial question, and the final determination upon it is with the courts.

1 "Taxation is bounded in its exercise by its own nature, essential characteristics and purpose." Agnew, J., in Matter of Washington St., 69 Pa. St., 352, 363. See McFadden v. Longham, 58 Tex., 579. "In our time a French writer has recorded that after attending a debate in our House of Commons, he observed to an English statesman that he had heard no assertion of the general principles of constitutional freedom. The answer was, 'we take that for granted."" Knight's England, vol. 3, p. 417. It is observable in the state constitutions that while they enter with considerable minuteness into declarations of individual right, many of the most important principles of government are usually not declared at all, but simply taken for granted. 2See ante, p. 45.

Public purposes. It is the first requisite of lawful taxation that the purpose for which it is laid shall be a public purpose. The decision to lay a tax for a given purpose involves a legislative conclusion that the purpose is one for which a tax may be laid; in other words, is a public purpose. But the determination of the legislature on this question is not, like its decision on ordinary questions of public policy, conclusive either on the other departments of the government, or on the people. The question, what is and what is not a public purpose, is one of law; and though unquestionably the legislature has large discretion in selecting the object for which taxes shall be laid, its decision is not final. In any case in which the legislature shall have clearly exceeded its authority in this regard, and levied a tax for a purpose not public, it is competent for any one who in person or property is affected by the tax, to appeal to the courts for protection. This subject will receive a more full consideration further on.1

Territorial limitations. It has already been seen that persons and property not within the territorial limits of a state cannot be taxed by it. In such a case the state affords no protection, and there is nothing for which taxation can be an equivalent. This rule is applicable to the lands of an Indian tribe, which, though they may be within the limits of the state, are exempt from its jurisdiction. It is also applicable to the Indians themselves while they retain within the state their tribal relations, and to persons who reside on lands purchased by or ceded to the United States for navy yards, forts, arsenals, etc., where the state has reserved no other jurisdiction or right than that to serve process. But it is not necessary that both

1 Post, ch. IV.

3

2 See Dorwin v. Strickland, 57 N. Y., 492. In Dallinger v. Rapello, 14 Fed. Rep., 32, it was held that under the statutes of Massachusetts the personal property of a deceased inhabitant was not taxable within the state after the appointment of an executor and before distribution, when the property was not within the state, and neither the executor nor any person in interest had a domicile there. The decision, however, was on the construction of the statute and not upon the point of state power.

3 The New York Indians, 5 Wall., 761.

4 State v. Ross, 7 Yerg., 74.

"Commonwealth v. Clary, 8 Mass., 72. It is otherwise where the state in making the cession or consenting to the purchase reserves the right to tax.

person and property should be within the jurisdiction in order to be taxable; it is sufficient if either is. If a person is domiciled within the state, his personal property in contemplation of law has its situs there also, and he may be taxed in respect of it at the place of his domicile. So at the option of the state, it may impose taxes on tangible personal property within the state, irrespective of the residence or allegiance of the owner. But real property out of the state cannot be taxed

Fort Leavenworth R. Co. v. Lowe, 27 Kan., 749; S. C. in error, 114 U. S., 525. See In re O'Conner, 37 Wis., 379.

1 Inhabitants of Great Barrington v. County Com'rs, 16 Pick., 572; State v. Branin, 23 N. J., 484; State v. Bentley, 23 N. J., 532; Newark City Bank v. The Assessors, 30 N. J., 13; Nashua Savings Bank v. Nashua, 46 N. H., 389; Bemis v. Boston, 14 Allen, 366; Commonwealth v. Hays, 8 B. Monr., 1, 2; Wilkey v. Pekin, 19 Ill., 160; Rieman v. Shepard, 27 Ind., 288; Johnson v. Oregon City, 2 Oreg., 327; Same v. Same, 3 Oreg., 13; Griffith v. Carter, 8 Kan., 565; Blood v. Sayre, 17 Vt., 609. But not in a state where it is merely passing through. Hays v. Steamship Co., 17 How., 596; Hoyt v. Commissioners of Taxes, 23 N. Y., 224; Parker Mills v. Commissioners of Taxes, 23 N. Y., 242; State v. Engle, 34 N. J., 425; Chauvenet v. Commissioners, 3 Md., 259; Hooper v. Baltimore, 12 Md., 464; Whitsell v. Northampton Co., 49 Pa. St., 526; McKeen v. Same, 49 Pa. St., 519; Union Bank v. State, 9 Yerg., 489; Conley v. Chedic, 7 Nev., 336; Mobile v. Baldwin, 57 Ala., 62. A mortgage must be taxed to the owner where he lives, not where the land mortgaged is. Latrobe v. Baltimore, 19 Md., 13. Investments by residents of the state in bonds and stocks of foreign corporations may be taxed within the state. Worthington v. Sebastian, 25 Ohio St., 1. It is competent to provide by law for taxing shares in corporations at the place where the business is carried on. Tappan v. Merchants' National Bank, 19 Wall., 490.

2 Hood's Estate, 21 Pa. St., 106, 114; Maltby v. Reading R. R. Co., 52 Pa. St., 140; State v. Falkinburge, 15 N. J., 320; Wilson v. New York, 4 E. D. Smith, 675; Hoyt v. Commissioners of Taxes, 23 N. Y., 224; People v. Ogdensburg, 48 N. Y., 390; Howell v. State, 3 Gill, 14; Rieman v. Shepard, 27 Ind., 288; Catlin v. Hull, 21 Vt., 152; Blackstone Manuf. Co. v. Blackstone, 13 Gray, 488; Leonard v. New Bedford, 16 Gray, 292; Steere v. Walling, 7 R. I., 317; Hartland v. Church, 47 Me., 169; Desmond v. Machias, 48 Me., 478; Mills v. Thornton, 26 Ill., 300; St. Louis v. Ferry Co., 40 Mo., 580; People v. Insurance Co., 29 Cal., 533; Green v. Van Buskirk, 7 Wall., 139, 150. The same is true of business carried on within a state or municipality by non-residents. See Corfield v. Coryell, 4 Wash. C. C., 371; Harrison v. Vicksburg, 3 S. & M., 581; Worth v. Fayetteville, 1 Winst., 70; State v. City Council of Charleston, 2 Speers, 623; Padelford v. The Mayor of Savannah, 14 Ga., 438; Pearce v. Augusta, 37 Ga., 597; Shriver v. Pittsburg, 66 Pa. St., 446. Compare Bennett v. Birmingham, 31 Pa. St., 15; Dallinger v. Rapello, 14 Fed. Rep., 32.

Where the statute provides that the mortgagor may pay the tax on the