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the cases of Gridley v. Bloomington (1878) 88 Ill. 554, 30 Am. Rep. 566, affirmed by a divided court (three justices dissenting) in Chicago v. O'Brien, 111 Ill. 532, 53 Am. Rep. 640, decided in 1884, and upon the case of State v. Jackman (1898) 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438, and the decision of the Court of Appeals of the District of Columbia in McGuire v. District of Columbia (1904) 24 App. Cas. D. C. 22, in support of his contention. The reasoning by which this conclusion is reached may be thus briefly summa. rized. The state imposes upon the municipalities the duty of constructing highways and of maintaining them in a safe condition for travel under a penalty for failure so to do, and also imposes a civil liability for damages for accident arising by reason of such neglect. This is a public improvement, and is also a public duty for which taxes are properly levied upon a taxing district, which may, indeed, include the whole municipality, or which may be limited to include only those whose property is specially benefited; but in either case the tax must be assessed upon the principles of uniformity and of equality. The sidewalks in a city are undoubtedly part of the highway, and the general duty of removing or rendering harmless the accumulations of snow and ice thereon constitutes a repair of a public highway and a public improvement as to which the same rules of equality and uniformity must be observed when a tax is to be levied therefor. Consequently, a requirement that each abutter shall be required to remove the snow and ice from the sidewalk in front of his premises, whatever their extent, and irrespective of their value, is a violation of this rule of uniformity and equality, inasmuch as it imposes a burden and creates a duty which does not bear on all citizens alike; nor equally upon all abutters, inasmuch as it is a uniformity of system only, and not a uniformity of result. The argument would seem to rest upon the postulate that "taxation must be uniform and equal," and this is doubtless true when it is so expressed in the Constitution; but it is not a fundamental maxim of government, limiting the Legislature, unless it is so expressed therein.

In Chicago v. O'Brien, supra, cited by the appellant, it was said (page 535 of 111 Ill. [53 Am. Rep. 640]) that: "In City of Chicago v. Larned, 34 Ill. 203, a case very elaborately argued by able counsel, the principle involved in the decisions of these cases was carefully considered, and it was held they could not apply here, that they were decided under Constitutions so materially different from ours that the same line of reasoning is not applicable to both." This statement is the more clearly apparent upon referring to the decision in Chicago v. Larned, where it appears by the opinion (page 268) that section 5 of article 9 of the Constitution of IIlinois contained a provision requiring "such

taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same"; the court adding (page 275): "The framers of our Constitution have taken unexampled pains by these separate sections to affirm the principles of 'equality' and 'uniformity' as indispensable to all legal taxation whether general or local. Section five, supra, is believed to be peculiar to our Constitution, and manifests the great anxiety of its framers to place every possible species of taxation upon the only equitable basis conceivable, and is believed to be more stringent than any provision in any other state Constitution on the same subject." It is obvious, accordingly, that the decision in Chicago v. O'Brien was rendered in accordance with special requirements of the Constitution of Illinois. A similar consideration seems to have controlled the decision in State v. Jackman, 69 N. H. 318, 329, 41 Atl. 347, 348, 42 L. R. A. 438, in which the court refers with approval to the decision in State v. Express Co., 60 N. H. 219, 237, in which latter case the court said: "But this general principle of equality, which, independent of any constitutional provisions, underlies and forms the basis of all taxation, is enforced here by the provision of the Constitution that requires that 'all assessments, rates and taxes shall be proportional and reasonable.' It is not left to the discretion of the general court to determine what is equal and reasonable, and to impose such as they may consider equal, but any other than equal and reasonable taxes, rates, and assessments are prohibited; and the equality intended is 'that the same tax shall be levied on the same amount of property in every part of the state, so that each man's taxable property shall bear its due proportion of the tax according to its value.' 4 N. H. 568." The remaining case cited by the appellant is McGuire v. District of Columbia, 24 App. Cas. D. C. 22, in which an act of Congress passed in 1904 and applicable to the District of Columbia, because of certain inequalities and exceptions therein, was thus characterized by the court: "We find only one section in it, that which repeals the act of 1897, which does not in some way contravene the principles of common right and the fundamental law." The court continuing (page 31): "The act is entirely destitute of any provision for the removal of snow and ice from the sidewalks of adjoining improved property that happens to be vacant or untenanted at the time, and this class of property and its owners escape all liability under the act. This exemption or omission, whichever we call it, would be fatal to the act, even if there were no other defect, for the duty required to be performed is one which requires the most absolute uniformity with respect to all property within the socalled fire limits of the District adjoining the paved sidewalks." And page 32: "But probally the most glaring infirmity of this en

actment is its sharp discrimination between the tenants and occupants of improved lots and the owners of vacant or unimproved lots. To punish the one owner, for failure of compliance with the act, by fine and imprisonment and an assessment upon his property, and to exempt the other from all duty and from all liability for the same precise thing, is a species of inequality which is repugnant to the principles of natural justice." And it appears the decision is clearly based upon the inequalities and discriminations appearing in the act, as is evidenced by the statement (page 35): "It is for this inequality and for this discrimination that we are constrained to hold the enactment to be a nullity."

The grounds for the foregoing decisions have thus been set forth at some length, in order that the reasoning in all the cases cited by the appellant, and all that we have found, after an extended examination, might be clearly set forth in order to an examination of their relevancy to the case at bar. Clearly, they do not apply to the case at bar, unless similar inequalities and discriminations appear in the ordinance in question, or unless the Constitution of Rhode Island contains restrictions similar to the Constitutions of Illinois and New Hampshire. We find no such obnoxious discriminations in the ordinance of the city of Providence, and proceed to a consideration of those provisions of the Constitution of this state which are said to be controlling in this respect. In Cleveland v. Tripp, 13 R. I. 50, 62, Durfee, C. J., said: "But our Constitution is extremely latitudinarian. It contains no restriction, except what is implied in the declaration that 'the burdens of the state ought to be fairly distributed,' and this declaration, as was said in Matter of Dorrance Street, 4 R. I. 230, 249, expresses no more than would be implied without it, 'from the fact of our free institutions and the general principles of constitutional law.'" And in Crafts v. Ray, 22 R. I. 179, 183, 46 Atl. 1043, 49 L. R. A. 604, this court said, of the same provision, "the form of this clause is advisory, not mandatory," and that it was "addressed rather to the General Assembly, by way of advice and direction, than to the courts, by way of enforcing restraint upon the lawmaking powThe form is 'ought to be.' The word is fairly distributed, not 'equally' even -unless equality be fair, which is not always in any sense, and never in some senses.

er.

* Had the Constitution been wholly silent upon this subject, a greater latitude could not have been given by these principles than seems to have been studiedly implied in the form, spirit, and general terms of the sentence."

Hence it is evident that the expressed provisions of the Constitution of this state cannot avail the appellant here. It is obvious that there is no specific provision that taxation shall be uniform and equal, expressed in

the Constitution of this state, and it is equally obvious that it is not our province to determine what ought to be there, but is not there. As was said in State v. Travelers' Ins. Co. (1900) 73 Conn. 255, 262, 47 Atl. 299, 301, 57 L. R. A. 481: "Is this maxim necessarily implied from any provisions of our fundamental law? Unless the vague notion of a higher law is claimed as a constitutional provision, we are pointed to no provision, nor to any combination of provisions, from which it is claimed that such a maxim is a necessary implication. To controvert a claim which rests on no definite proposition is ordinarily like fighting the air. But fortunately in this case the task of proving a negative is not difficult. The provisions of our Constitution exclude the possibility of a limitation of legislative power by any implied mandate that taxation shall be equal and uniform." The reasoning in the cases cited by the appellant, as also his contention set forth in his brief and at the argument, alike proceed upon the assumption and the theory that the legislation in question is in substance and effect the imposition of a tax. Thus, in State v. Jackman, supra, the court says (page 329 of 69 N. H., page 348 of 41 Atl. [42 L. R. A. 438]): "True, the ordinance is not strictly a law levying a tax, the direct or principal object of which is the raising of revenue (Goddard, Petitioner, 16 Pick. [Mass.] 504); but it is such a law practically, both in substance and in effect, and should fairly be so regarded. The amount of expense from which the city is relieved by the operation of the ordinance is equivalent to so much revenue derived from taxation. The additional burden to which the lot owners are subjected is none the less a tax because it is exacted in labor and not in money [citing authorities]; and the fine imposed for its nonperformance is as useful to the city as a tax of equal amount." The correct view, however, seems to us to be expressed in Goddard, Petitioner, supra, cited in State v. Jackman, supra. There Shaw, C. J., says (page 509 of 16 Pick. [Mass.]): "It is not speaking strictly to characterize this city ordinance as a law levying a tax, the direct or principal object of which is the raising of revenue. It imposes a duty upon a large class of persons, the performance of which requires some labor and expense, and therefore indirectly operates as a law creating a burden. But we think it is rather to be regarded as a police regulation, requiring a duty to be performed, highly salutary and advantageous to the citizens of a populous and closely built city, and which is imposed upon them because they are so situated as that they can most promptly and conveniently perform it, and it is laid, not upon a few, but upon a numerous class, all those who are so situated, and equally upon all who are within the description composing the class." Nor are decisions wanting in other states in which similar legislation has been sustained

as valid. Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490; Reinken v. Fuehring, 130 Ind. 382, 30 N. E. 414, 15 L. R. A. 624, 30 Am. St. Rep. 247; City of Helena v. Kent, 32 Mont. 279, 80 Pac. 258; State v. McMahon, 76 Conn. 97, 55 Atl. 591; City of Lincoln v. Janesch, 63 Neb. 707, 89 N. W. 280, 56 L. R. A. 762, 93 Am. St. Rep. 478; Flynn v. Canton Co. of Baltimore, 40 Md. 312, 17 Am. Rep. 603; Taylor v. Lake Shore & Mich. S. Ry. Co., 45 Mich. 74, 7 N. W. 728, 40 Am. Rep. 457. It would serve no useful purpose to further multiply citations from these authorities. Suffice it to say that the reasoning in support of them may be summarized as based upon the following just and sound principles.

As all property is held and enjoyed subject to the police power of the state, so all lawmaking power is vested in the Legislature, subject to the limitations contained in the Constitution. Governments are instituted

and laws are enacted, in large measure, in order that the respective rights and duties of citizens to each other and to the state may be determined and enjoyed, and these duties, within proper limitations, may be determined and changed from time to time by the Legislature, according to the status or occupation or temporary relation of the citizen, without being obnoxious to the charge of arbitrary partiality or of unfair discrimination. For example, the ordinary duty which a bailee owes to his bailor is increased when the bailee is a common carrier, as the liability of a principal for the acts of his agent is also enlarged when the two stand in the relation of master and servant; and, as it is true that the Legislature may enlarge or diminish the duties which it imposes upon men engaged in certain employments or engaged in certain occupations, so it may create, enlarge, or diminish the duties which accompany the ownership and use of land, and legislation is not necessarily invalid because it affects such persons only. These observations are true also of the duties and limitations which are attached to the ownership of land. These may, indeed, be changed from time to time by the Legislature, but they are not of necessity void because they apply to landowners only. Obviously, an act which apparently seeks to accomplish such a purpose, but nevertheless in fact and in effect works a confiscation of property, or is an arbitrary and partial discrimination between persons who are equal before the law, is invalid. From the fact of his citizenship, every citizen is under obligation to render some unpaid service to the state which protects him, reasonable, of course, in view of the exigencies which require such a service from him, and a law which simply defines and enforces such an obligation is entirely within the scope of the legislative power. The wisdom and the expediency of such a requirement are, commonly speaking,

66 A.-20

legislative questions, while the function of the judiciary is rather to determine whether such an act in fact and in effect violates the constitutional limitations imposed upon the lawmaking power. But it cannot be successfully contended that such legislation is confiscation, simply because there is no provision for payment for the services rendered, nor that it makes unequal and arbitrary discriminations, because different burdens are imposed upon persons differently employed or owning different kinds of property.

The creation of a municipal corporation, such as a city of Providence, confers special corporate powers and privileges for the common welfare, and it of necessity involves the imposition of special limitations upon the individual in the use of his property, as well as in his action or in his employment, and these limitations are the foundation of rights which the same individual owes to his fellows and to the corporate community of which they are alike members. This is specially true of the highways of a municipality. It is true that they serve as means of public travel for all; nevertheless, that travel is largely, if not mainly, incident to the use and the enjoyment of the land upon which they abut. Were it not for the highways of the city, small, indeed, in comparison with their present value, would be the value of city lots, to which no access could be had. And so it may be said, in a large way, that those who own and those who occupy the land within the limits of the city are collectively the inhabitants of the city, so that the relation of the land in a city to the plexus of streets by which the land is surrounded and entered, and which so greatly increases its value and its use, is a peculiar and special relation. It is not to be questioned that sidewalks are a part of the highway, and it is of common knowledge that they are commonly laid within the lines of the street, and indeed they sustain a relation which is even closer and more immediate to the adjoining land and buildings, and hence are properly made the subject of special authority, and may be made the subject of special regulations. It is obvious that a city of very small area may have several hundred miles of sidewalks, and it is of the greatest importance to the public safety that these entrances to the land should be kept safe, as indeed, such safety of access increases the value of all the land which they adjoin. It was conclusively shown at the argument that a purely corporate oversight of all these sidewalks could not adequately meet all the emergencies which in this latitude the action of the elements often creates, and it was shown with equal clearness that the inhabitants, being, as already stated, practically those who are the owners and the occupiers of the land, are alone so situated as to be enabled to render those services which are essential alike to the public welfare, as well

as promote their individual interest, and we see no constitutional objection to the validity of such legislation. As said in State v. McMahon, 76 Conn. 97-106, 55 Atl. 591, 594: "To say that it is possible for the Legislature, under cover of a law purporting to be of this kind, to accomplish actual confiscation of property, or the subjection of citizens to partial and arbitrary discriminations, is to state a proposition which may be sound, but is not relevant to the facts of this case. To say that a law defining the duties of citizens in serving the state is necessarily a violation of the constitutional guaranties against the confiscation of property and partial and arbitrary discriminations, because the service is unpaid, or is one that all citizens are not in a situation to render, is to state a proposition which is radically unsound. Such a theory of selfish immunity from all duties inherent in citizenship is supported by no principle of political ethics, and cannot safely be reduced to practice under any government."

There remains the final objection urged by the appellant: That this legislation violates the provisions of the fourteenth amendment to the Constitution of the United States. The contention apparently proceeds upon the assumption that the legislation in question is of the nature of a tax, and is objectionable because of the inequality of burden imposed thereby. Even so, the contention cannot avail the appellant. Says Mr. Justice Miller, in Davidson v. New Orleans, 96 U. S. 97, 105, 24 L. Ed. 616, in speaking of unequal taxation: "The federal Constitution imposes no restraint upon the states in that regard." And it is stated by Mr. Justice Brewer, in Merchants' Bank v. Pennsylvania, 167 U. S. 461, 464, 17 Sup. Ct. 829, 830, 42 L. Ed. 236: "Indeed, this whole argument of a right under the federal Constitution to challenge. a tax law on the ground of inequality in the burdens resulting from the operation of the law is put at rest by the decision in Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232, 237, 10 Sup. Ct. 533, 535, 33 L. Ed. 892, in which case Mr. Justice Bradley, speaking for the court, said: "The provision in the fourteenth amendment, that no state shail deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions.

It may

impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products. It may tax real estate and personal property in a different manner. It may tax visible property only, and not tax securities for payment of money. It may allow deductions for indebtedness, or not allow them. * * * We think that we are safe in saying that the

fourteenth amendment was not intended to compel the state to adopt an iron rule of equal taxation. If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some of the states, whose object is to secure equality of taxation, and which are usually accompanied with qualifications deemed material; but it would render nugatory those discriminations which the best interests of society require, which are necessary for the encouragement of needed and useful industries, and the discouragement of intemperance and vice, and which every state, in one form or another, deems it expedient to adopt.' See, also, Jennings v. Coal Ridge Improvement Co., 147 U. S. 147, 13 Sup. Ct. 282, 37 L. Ed. 116."

We are of opinion, therefore, that the ordinance in question is an ordinance which the city council of Providence was authorized to enact, and that it does not violate the provisions of the Constitution of this state or of the Constitution of the United States, and, so holding, our order is that the papers in the cause be sent back to the superior court, with our decision, for further proceedings in accordance therewith.

STATE v. CUSTER.

(28 R. I. 222)

(Supreme Court of Rhode Island. Feb. 18, 1907.)

1. ELECTIONS-VIOLATION OF ELECTION LAWS

-COMPLAINT.

Gen. Laws 1896, c. 14. § 2, provides that every person who at any election shall fraudulently vote or attempt to vote, not being qualified, or shall vote or attempt to vote in a town, ward, or voting district other than that in which he bas his residence, etc., shall be punished. Held, that a complaint alleging that defendant. at a certain meeting of electors of the town of North Providence, held for the choice of town and state officers and a representative of Congress, knowing that he did not have his residence in such town, willfully and fraudulently did give in his vote for persons to serve in said office, etc., was not objectionable for failure to aver the particular office or officers for whom or for which he so voted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, § 358.] 2. SAME.

Under Gen. Laws 1896, c. 14, § 2, providing that a person voting or attempting to vote in a town, ward, or voting district other than in the town, ward, or voting distric where he has his residence and home, etc., shall be punished, a complaint alleging that defendant did not then have his residence and home in the town where he voted sufficiently alleged his dis qualification to vote in such town.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Elections, § 357.]

3. EVIDENCE JUDICIAL ELECTION-DATE.

NOTICE - GENERAL

The court will take judicial notice that the 6th day of November, A. D. 1906, was the date prescribed by Gen. Laws 1896, c. 12, § 3, and by Const. art. 11, § 2, of amendments (Public Laws 1900, p. 86), for the holding of an election for congressional, state, and township officers.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 36.]

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Where a complaint for illegal voting charged that defendant voted illegally at a meeting held in North Providence for the choice of town officers, state officers, and a representative of Congress, it sufficiently apprised defendant that the town officers were for the town of North Providence, the state officers for the state of Rhode Island, and that the representative was to serve in the Congress of the United States.

Case Certified from District Court, Providence County.

William Custer was charged with illegal voting in violation of Gen. Laws 1896, c. 14, § 2. On certified questions from a district court of the Sixth judicial district.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

James C. Collins, Jr., Green, Hinckley & Allen, and Guy Metcalf, for the State. John I. Devlin, for defendant.

BLODGETT, J. Under the provisions of section 478 of the court and practice act the district court of the Sixth judicial district for 1905 has certified for our determination certain questions arising upon a demurrer to the following complaint for an alleged violation of chapter 14, § 2, Gen. Laws 1896, viz.: "Joseph Wells, a citizen of North Providence, in the county of Providence and state of Rhode Island, on oath complains, in the name and behalf of the state, that at said North Providence, in said county, on the sixth day of November, A. D. 1906, with force and arms, William Custer, of said Providence, laborer, did then and there at a meeting of the electors of said town of North Providence duly and in due form of law had and held for the choice of town officers, state officers, and a representative in Congress, not being and knowing himself not to be then and there fully qualified to vote thereat, by reason that he did not then and (there) have his residence and home in said town of North Providence, willfully and fraudulently, on said day and and year, at said North Providence, give in his vote for persons to serve in said offices as though he were and as pretending to be qualified, against the statute and the peace and dignity of the state," etc. The provisions of the statute in reference thereto are thus expressed: "Sec. 2. Every person who, in any election, shall fraudulently vote or attempt to vote, not being qualified, notwithstanding his name may be on the voting-list at the polling-place where he shall so vote or attempt to vote; or who shall fraudulently vote upon

the name of any other person, or, having voted in one town, ward, or voting-district, shall vote or attempt to vote in the same or in another town, ward, or voting-district; or who shall fraudulently vote or attempt to vote in a town, ward, or voting-district, other than in the town, ward, or voting-district wherein he has his residence and home at the time of his voting or attempting to vote, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment not less than sixty days nor more than one year, or by both such fine and imprisonment in the discretion of the court; and no person after conviction of such offence shall thereafter be permitted to exercise the privilege of voting for any military or civil officer."

1. The first question is this: "(1) Is it necessary for the complainants to allege for whom the defendant voted or how his ballot was marked, or even that it was marked, or anything more than that he did 'give in his rote' or that he had voted?" The answer to this question obviously depends upon the significance of the word "vote" as used in the statute and in the complaint. In considering the meaning of the word "vote," it was said in Gillespie v. Palmer et al., 20 Wis. 544, 553: "What is the meaning of the word 'vote'? It is the expression of the choice of the voter for or against any measure, any law, or the election of any person to office. At a general election, there are several officers, both state and county, to be elected, and there may be measures to be voted on. The expression of the choice of the voter in favor of any candidate for office by depositing a ballot for him is a vote for such candidate; and, if there are several candidates for different offices, and the voter votes for each, he casts in so doing as many different votes as there are candidates for whom he votes, and it makes no difference that they are all on one piece of paper or ticket." Again, in Davis v. Brown, 46 W. Va. 716, 723, 34 S. E. 839, 841, the court says: "While the terms 'ballot' and 'vote' are sometimes confused, and while they may sometimes be used synonymously, the ballot is, in fact, under our form of voting, the instrument by which the voter expresses his choice between two candidates or two propositions; and his vote is his choice or election between the two, as expressed by his ballot, and when his ballot makes no choice between any two candidates, or on any question, then he casts no vote for either of these candidates or on the question. Those ballots are not votes." The distinction here made is aptly illustrated in the provisions of article 8, § 2, of the Constitution of this state, as follows: "The voting for Governor, Lieutenant-Governor, Secretary of State, Attorney-General, General Treasurer and Representative to Congress shall be by ballot." Indeed, our statute punishing illegal voting is older than the present Constitution of the state, and it follows that the meaning which attached to the word

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