How much of this may be due to the fact that the right to make a personal assessment was not contested can only be matter of conjecture; but at present it must be conceded that the weight of authority is in favor of the right.1

in proportion to frontage, nothing being said about its being a charge on the property. Kendig v. Knight, 60 Ia., 29. Assumpsit may be maintained against the person assessed, even though there be other remedy. Dashiel v. Baltimore, 45 Md., 615. The assessment may be collected by distress on the land itself, but in the absence of statute allowing it, assumpsit will not lie except against the person who was owner when the work was done. Wolff v. Baltimore, 49 Md., 446.

An ordinance provided for collecting the cost of a street improvement from the owners of the property benefited. By statute, the city was authorized to assess the cost of such improvements upon the property benefited, and to collect such assessments as other city taxes are collected. It was objected that the ordinance did not strictly pursue the power granted, as it directed the assessment to be made on the person. Held, that the assessment was "a personal debt to the extent of the property charged with the tax. The tax was intended to be, and is, a lien on the property; and the owner, to that extent, is answerable for its payment, as for a personal debt of any other kind; but we do not wish to be understood that his liability for that tax would extend beyond the value of the property taxed for the improvement." Moale v. Mayor, etc., of Baltimore, 61 Md., 224.

The rendering of a personal judgment against the owner, when the tax is at the same time a charge on the land, is not in violation of the right to due process of law. Davidson v. New Orleans, 96 U. S., 97.

CHAPTER XXI.

LOCAL TAXATION UNDER LEGISLATIVE COMPULSION.

The general doctrine. In our discussions hitherto it has been assumed as a fundamental idea in republican government, that the people who are to pay the taxes must vote them, either directly or by their proper representatives. State taxes must be levied under laws passed by the legislature of the state, and local taxes under the votes of the people concerned, or their officers or agents duly authorized.

It has also been assumed that all local powers must have their origin in a grant by the state, which is the source and fountain of authority. The power to tax is no exception to this general rule. Every municipal corporation, and every political division of the state which demands taxes from the people, must be able to show due authority from the state to make the demand. The authority in some cases is conferred by the state constitution, but if not found there it must be given by legislative enactment. No person is compellable to pay taxes for imposing which the authorities are unable to show a legislative grant of power.1

If local powers of taxation must come from the state, it might seem to follow as a corollary that the state could at pleasure withhold the grant and exercise the power itself. But in the general framework of our republican governments, nothing is more distinct and unquestionable than that they recognize the existence of local self-government, and contemplate its permanency. Some state constitutions do this in express terms, others by necessary implication; and probably in no one of the states has the legislature been intrusted with a power which would enable it to abolish the local governments. It has usually a large authority in determining the extent of local

1 Inhabitants of a village have no inherent right to have taxes assessed and collected by officers of their own choice, and a statute authorizing them to be laid and collected by town officers is not unconstitutional. Jones t. Kolb, 56 Wis., 263; Ryerson v. Laketon, 52 Mich., 509.

2 People v. Hurlbut, 24 Mich., 44.

powers, and the framework of local government; but while it may shape the local institutions, it cannot abolish them, and, without substituting others, take all authority to itself.

Local power to tax. Of all the customary local powers, that of taxation is most effective and most valuable. To give local government without this would be little better than a mockery. If any state has the power to withhold it, the exercise of such a power would justly be regarded as tyranny. Indeed, local taxation is so inseparable an incident to republican institutions, that to abolish it would be nothing short of a revolution.

By local taxation here we do not mean that which is exercised for state purposes. So far as local officers or local boards are made use of for the levy and collection of state taxes, they cannot be left at liberty to exercise their own discretion in determining whether they will act or abstain from acting. If the state, instead of issuing a separate warrant for the collection. of the state taxes, shall see fit to apportion the whole tax among the several townships, leaving the township authorities to collect their several proportions under the same warrants which are issued for the collection of local taxes, there is no reason why the collection of this proportion of the state tax should not be made compulsory. No local community has any inherent right to decide for itself whether it will or will not bear its share of the state burdens, and obviously the state could not afford to confer the right. To do so would leave the state in the same precarious condition that the federal union was found to occupy before the right to tax had been conferred upon it by the constitution; a government without the means of enforcing respect, securing obedience, performing its obligations or perpetuating its existence.1

1 De Tocqueville, who studied American institutions with so much care, and commented upon them with such wisdom, has the following remarks, which bear directly upon the subject now under discussion: "In the nations by which the sovereignty of the people is recognized, every individual has an equal share of power, and participates equally in the government of the state. Why, then, does he obey the government, and what are the natural limits of this obedience? Every individual is always supposed to be as well informed, as virtuous and as strong as any of his fellow-cit

Compulsory local taxation. But aside from cases of state taxation proper, there are some to which the same principles apply. They are cases in which taxation is usually intrusted to the judgment and discretion of the people to be taxed, but where the interest is really general, and referring the cases to the local community is merely a politic provision for the apporizens. He obeys the government, not because he is inferior to those who conduct it, or because he is less capable than any other of governing himself, but because he acknowledges the utility of an association with his fellow men, and he knows that no such association can exist without a regulating force. He is a subject in all that concerns the duties of citizens to each other; he is free and responsible to God alone for all that concerns himself. Hence arises the maxim that every one is the best and sole judge of his own private interest, and that society has no right to control a man's actions unless they are prejudicial to the common weal, or unless the common weal demands his help. This doctrine is universally admitted in the United States. I shall hereafter examine the general influence which it exercises on the ordinary actions of life. I am now speaking of the municipal bodies. The township, taken as a whole and in relation to the central government, is only an individual like any other, to whom the theory I have just described is applicable. Municipal independence in the United States is, therefore, a natural consequence of this very principle of the sovereignty of the people. All the American republics recognize it more or less; but circumstances have peculiarly favored its growth in New England.

"In this part of the union political life had its origin in the townships, and it may almost be said that each of them originally formed an independent nation. When the kings of England afterwards asserted their supremacy they were content to assume the central power of the state. They left the townships where they were before, and, although they are now subject to the state, they were not at first, or were hardly so. They did not receive their powers from the central authority, but, on the contrary, they gave up a portion of their independence to the state. This is an important consideration, and one which the reader must constantly recollect. The townships are generally subordinate to the state only in those interests which I shall term social, as they are common to all the others. They are independent in all that concerns themselves alone; and amongst the inhabitants of New England I believe that not a man is to be found who would acknowledge that the state has any right to interfere in their town affairs.

"The towns of New England buy and sell, prosecute, or are indicted, augment or diminish their rates, and no administrative authority ever thinks of offering any opposition.

"There are certain social duties, however, which they are bound to fulfill. If the state is in need of money a town cannot withhold the supplies; if the state projects a road the township cannot refuse to let it cross the territory; if a police regulation is made by the state it must be enforced by the town; if a uniform system of public instruction is enacted every town is bound to establish the schools which the law ordains." Democracy, ch. v.

tionment of state burdens. Mention of one or two of these cases will sufficiently illustrate the principle.

One of the first and highest of all the duties devolving upon the state is to preserve the public peace. For this purpose, peace officers are chosen, judges selected, the militia organized, and the executive armed with very high powers to meet the contingencies of riot and disorder. In some cases, a state police force has been established as assistant to, and in some degree to supersede, the ordinary officers; but in general, the belief has prevailed that the public peace and good order were better preserved by apportioning the duty among the several municipal divisions, retaining only a state supervision over all. This apportionment is made by general laws, under which counties, towns, etc., choose their own peace officers, and levy the necessary taxes to meet the expense of a local administration of police laws; and by municipal charters which confer large police powers upon the bodies incorporated.

But if the local authorities were allowed unlimited discretion to levy or refuse to levy the necessary taxes for the support of the local police force, it might possibly happen, that, from neglect or refusal to do so, one part of the state might be left a prey to disorder and violence, to the general detriment of the state at large. Of course no state could safely, for a single day, tolerate such a condition of affairs. A city or township could no more be left at liberty to decline taxation for police purposes, when the police laws and police force, and the tax which supports them, are made local by the law, than if all were general. The police organization of the state is really general, however it may vary in different localities, and the obligation to support it is general, however it may be apportioned. To this effect are the decisions. And within the reason of these decisions would fall all cases in which the municipal corporations or subdivisions of the state are called upon to tax their people for the erection and repair of court-houses and jails, by means of which the police laws are rendered effectual. Such calls must, of course, be responded to.2

1 People v. Draper, 15 N. Y., 532; Baltimore v. State, 15 Md., 476; People v. Mahaney, 13 Mich., 481; People v. Common Council of Detroit, 28 Mich., 228, 236; People v. Common Council of Chicago, 51 Ill., 17.

2 The state cannot compel a city to erect a court-house for the county, but it may authorize the city to do so, either with or without a vote of the