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already put him quite sufficiently at disadvantage. Rules of evidence are subject to legislative control; and therefore the legislature may make the tax deed evidence of title. Rules of limitation are also subject to its control, and therefore the statute may quiet an open and public exercise of a right which remains unchallenged; but a purely nominal and fictitious exercise of a right by means of the recording of a paper, or even without that, if the legislature shall think proper to dispense with it, is a very unsubstantial basis for a conclusive muniment of title to land. Constructive possession in any case, it would seem, should be in the party having the legal title; and this would leave questions of title open so long as actual possession was had by no one.1

Claim or Color of Title. Peculiar questions arise under some statutes regarding the nature of the claim under which possession is held. The Illinois statute of 1839 declared the person in possession of land "under claim and color of title," who should continue in possession for seven years, and pay all taxes, should be held and adjudged the legal owner, "to the extent and according to the purport of his or her paper title." Here was a distinct requirement of a paper title of some kind, and of one also that should give "color" of title. Where the tax deed is made prima facie evidence of title, it is plain that it gives color of title; and the decisions have been that the seven years' possession under the circumstances required by the statute was sufficient with such a conveyance. The same de

1 Possession and cultivation of a few acres cannot be constructive possession of a whole township. Chandler v. Spear, 22 Vt., 388. Neither the fact that one is assessed for the land, or that he has paid taxes for a series of years thereon, is sufficient proof that he is in the adverse possession of it. McDermott v. Hoffman, 70 Pa. St., 31, 54; Chapman v. Templeton, 53 Mo., 463. And merely cutting timber, without actual possession, cultivation or inclosure, is not adverse possession, but a mere trespass on the constructive possession of the owner. Washburn v. Cutter, 17 Minn., 361; Safford v. Basto, 4 Mich., 406; Rivers v. Thompson, 46 Ala., 335.

2 Dawley v. Van Court, 21 Ill., 460; Fell v. Cessford, 26 Ill., 522, 525; Halloway v. Clark, 27 Ill., 483; Bride v. Watt, 23 Ill., 507; Webster v. Webster, 55 Ill., 325; Wettig v. Bowman, 47 Ill., 17; Morrison v. Norman, 47 Ill., 477; Dickerson v. Breeden, 30 Ill., 279, 325; Hardin v. Crate, 60 Ill., 215. To constitute color of title it is only necessary that the deed purports to convey title, and has been received in good faith. Winstanlay v. Meacham, 58 Ill.,

cisions hold, however, that the deed must be one, not by reason of defects, or of its recitals, void on its face. But in Wisconsin even a deed void on its face, with possession under it, is sufficient for the purposes of such a statute.2

In Iowa the statutes protect the occupant who has been in possession under "claim" of title for the requisite period, and this may be with or without a deed or other documentary evidence giving color of right to the claim. And probably in any state a tax deed based upon an actual sale, and not void upon its face, would be held sufficient color of right for the purposes of the statute.*

97. See Halloway v. Clark, 27 Ill., 483, 486, per Walker, J.; Dalton v. Lucas, 63 Ill., 337. But where he goes into possession and continues to hold the land and pay taxes for seven years, he will be protected, although the deed is void on its face; and good faith will be presumed, but the contrary may be shown. Dalton v. Lucas, 63 Ill., 337. An instrument which merely purports to contain an agreement to convey title at a future time cannot constitute color of title. Osterman v. Baldwin, 6 Wall., 116. "What is meant by color of title? It may be defined to be a writing, upon its face professing to pass title, but which does not do it, either from want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously that it would be apparent to one not skilled in the law;" per Lumpkin, J., in Beverly v. Burke, 9 Ga., 440, 443. A void tax deed held to give color of title. Stovall v. Fowler, 72 Ala., 77.

1 See, besides the Illinois cases above referred to, Shoat v. Walker, 6 Kan., 65; Carithers v. Weaver, 7 Kan., 110; Sapp v. Morrill, 8 Kan., 677; Wofford v. McKinna, 23 Tex., 36; Kilpatrick v. Sisneras, 23 Tex., 114; Cain v. Hunt, 41 Ind., 466. A tax deed which does not show that the land it purports to convey was sold for delinquent taxes is void on its face; and where the holder of such deed has not been in actual possession of the property, the statute of limitations will not run so as to bar the right to bring an action in two years to have the deed declared void. Hubbard v. Johnson, 9 Kan., 632. In Wisconsin a deputy of the county clerk may execute the tax deed in his own name. Gilkey v. Cook, 60 Wis., 133.

2 Edgarton v. Bird, 6 Wis., 527; Sprecher v. Wakeley, 11 Wis., 432; Lindsay v. Fay, 25 Wis., 460; Oconto Co. v. Jerrard, 46 Wis., 317; McMillan t. Wehle, 55 Wis., 685. See Cutler v. Hurlbut, 29 Wis., 152; North v. Hammer, 34 Wis., 432; Cowley v. Monson, 10 Biss., 182.

3 Hamilton v. Wright, 30 Iowa, 480. And see Taylor v. Buckner, 2 A. K. Marsh., 18; McCall v. Neeley, 3 Watts, 69, 72.

4 See Dillingham v. Brown, 38 Ala., 311; Rives v. Thompson, 43 Ala., 633, 641; Ladd v. Dubroca, 61 Ala., 25; Stovall v. Fowler, 72 Ala., 77; Stubblefield v. Borders, 92 Ill., 279; Cofer v. Brooks, 20 Ark., 542; Pleasants r. Scott, 21 Ark., 370, 374; Chapman v. Templeton, 53 Mo., 463; King v. Harrington, 18 Mich., 213; Moore v. Brown, 4 McLean, 211; S. C. in error, 11

It is a principle of the law that where the statute of limitations has run in favor of any party, this perfects his right, and he may make it the ground of affirmative proceedings thereafter. This principle applies in favor of the tax title, and dispenses with any necessity for proof of the proceedings when the title is subsequently brought in question, and precludes its being attacked.'

How., 414; Pillow v. Roberts, 13 How., 472; Flannagan v. Guinmet, 10 Grat., 421; Wheeler v. Merriman, 30 Minn., 372. But a tax deed not authenticated by the seal of the county as required by the statute is not color of title. Sutton v. Stone, 4 Neb., 319. The same is true of one whose description is void for indefiniteness. Humphries v. Huffman, 33 Ohio St., 395.

The statute of limitations in force when a sale is made does not make part of the contract of sale, and that statute may be repealed and one extending the time against the interest of the purchaser may be enacted without violating the constitution. Keith v. Keith, 26 Kan., 26. But in the absence of any provision saving rights of action already accrued, or words to give it retrospective effect, a statute passed in 1872 will not bar an action brought in 1875 on a sale made in 1869, although only five years are allowed from the date of sale in which to sue. Dale v. Frisbie, 59 Ind., 530.

1 Sprecher v. Wakeley, 11 Wis., 432; Knox v. Cleveland, 13 Wis., 245, 249; Pleasants v. Rohrer, 17 Wis., 557; Lawrence v. Kenney, 32 Wis., 281; Morton v. Sharkey, McCahon, 113; McKinney v. Springer, 8 Blackf., 506; Stipp v. Brown, 2 Ind., 647; Lewis v. Webb, 3 Me., 326; Atkinson v. Dunlap, 50 Me., 111; Thompson v. Caldwell, 3 Lit., 137; Couch v. McKee, 1 Eng. (Ark.), 484, 495; Girdner v. Stephens, 1 Heisk., 280; S. C., 2 Am. Rep., 700; Bradford v. Shine, 13 Fla., 393; S. C., 7 Am. Rep., 239; Holden v. James, 11 Mass., 396; Wright v. Oakley, 5 Met., 400; Woart v. Winnick, 3 N. H., 473; Martin v. Martin, 35 Ala., 560; Briggs v. Hubbard, 19 Vt., 86; Wires v. Farr, 25 Vt., 41; Davis v. Minor, 1 How. (Miss.), 183; Moore v. Luce, 29 Pa. St., 260; Hinchman v. Whetstone, 23 Ill., 185; Chiles v. Davis, 58 Ill., 411; Taylor v. Courtnay, 15 Neb., 190. Kipp v. Johnson, 31 Minn., 360, seems to lay down a different doctrine.

CHAPTER XVIII.

TAXATION OF BUSINESS AND PRIVILEGES.

The general right. It has been seen that the sovereignty may, in the discretion of its legislature, levy a tax on every species of property within its jurisdiction, or, on the other hand, that it may select any particular species of property, and tax that only, if in the opinion of the legislature that course will be wiser. And what is true of property is true of privileges and occupations also; the state may tax all, or it may select for taxation certain classes and leave the others untaxed. Considerations of general policy determine what the selection shall be in such cases, and there is no restriction on the power of choice unless one is imposed by constitution.' In another chapter it has been shown that constitutional provisions requiring the taxation of property by value have no application to the taxation of other subjects, and do not, therefore, by implication, forbid the taxation now under consideration.2

Federal taxation. The government of the United States has general power to levy taxes on all the subjects of taxation within the several states and territories, and in the District of Columbia. The exceptions to this general power have been mentioned in preceding pages and need not be repeated. But although it has this general power, its exercise is commonly limited to comparatively few subjects, and the government

1 Butler's Appeal, 73 Pa. St., 448, 451, per Mercur, J., citing Durach's Appeal, 62 Pa. St., 491. See Rome v. McWilliams, 52 Ga., 251; Decker v. McGowan, 59 Ga., 805.

2 Chapter VI. It is competent for a state to require the vendor of an article to take out a license, notwithstanding its invention is patented under the laws of the United States. Webber v. Virginia, 103 U. S., 344, and 33 Grat., 898. See Patterson v. Kentucky, 97 U. S., 501; People v. Russell, 49 Mich., 617. Persons engaged in hiring laborers within a state to be employed outside of it may be required to take out a license for the privilege, and this violates no constitutional principle. Shepperd v. Sumter Co. Com'rs, 59 Ga., 535.

3 Loughborough v. Blake, 5 Wheat., 317.

4 See chapter III.

revenues are collected in the main from taxes levied in various forms upon business.

Customs duties are levied by the United States exclusively, but internal taxes on business may be laid by the states as well as by the general government; and what is said in this chapter is applicable to taxation by both, where the contrary is not indicated.

The methods in which business shall be taxed are also in the legislative discretion. The taxes which are most customary are: 1. On the privilege of carrying on the business. 2. On the amount of business done. 3. On the gross profits of the business. 4. On the net profits or profits divided. But the tax may be measured by other standards prescribed for the purpose as well as by these.1

It has been seen that it is no conclusive objection to any such tax that it duplicates the burden to the person who pays it. To tax a merchant upon his stock as property, and also upon his gross sales, may seem burdensome, but it is not unconstitutional when the people have not seen fit expressly to forbid it.2 The two taxes are not identical, and though it may operate unjustly in individual cases to impose both, such will not be a necessary result, and it is always to be presumed that all the burdens of taxation have been distributed by the legislature with due regard to equality in the final results of collection. A tax, therefore, which at first blush appears to be invidious and partial may nevertheless in its ultimate results prove to be as just and equal as any.

Taxes on privileges. The following of one of the ordinary employments of life is not to be regarded as a privilege unless expressly made so by statute; and authority conferred by a municipal charter to tax privileges could not, therefore, without further designation, be held to embrace such employments.3

1 A law which provides that occupation taxes shall be placed by the county treasurer to the credit of the contingent fund of the township, city or village where collected, sufficiently meets a constitutional requirement for a specification of the purpose to which they are to be applied. Westinghausen v. People, 44 Mich., 265.

2 See Washington v. State, 13 Ark., 752; Straub v. Gordon, 27 Ark., 625; Mabry v. Tarver, 1 Humph., 94; Lewellen v. Lockharts, 21 Grat., 570.

3 See Columbia v. Guest, 3 Head, 413; Charleston v. Oliver, 16 S. C., 47.

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