"That a statute is not void because it is retrospective, has been repeatedly held by this court, and the feature of the Act of 1867, which makes it applicable to certificates already issued for tax sales, does not of itself conflict with the Constitution of the United States. Nor does every statute which affects the value of a contract impair its obligation. It is one of the contingencies to which parties look now in making a large class of contracts, that they may be affected in many ways by State and national legislation. For such legislation, demanded by the public good, however it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the Federal Constitution, so long as the obligation of performance remains in full force."

This decision, which was rendered thirty odd years ago, has been frequently cited with approval, and is conclusive of the constitutionality of the Act under review.

It may be noted that the Virginia statute, section 650, makes provision for repayment of "the whole amount paid by said purchaser, and any such additional taxes, levies, costs and charges as may have been paid by him since the sale, with interest *** on the amount so paid."

We are of opinion that the decree of the chancery court is plainly right, and it is affirmed.

Affirmed.

ROBINSON v. CITY OF NORFOLK.

(Richmond, March 12, 1908.)

1. EXTRA-TERRITORITORIAL TAXATION-Code, Sec. 1032.-For the purposes of taxation the State has been divided by the Constitution into counties and magisterial districts, cities and towns, each sub division being distinct and separate from the other, and no one of these communities can, for its own benefit and to defray the general expenses of its government, tax one of the others which has no share in the benefit to be derived therefrom. Such taxa tion would violate the principle that private property cannot be taken for anything but a public use. In so far, therefore, as section 1032 of the Code authorizes a city to levy, upon a circus exhibiting beyond its territorial limits, a license tax, for the

sole purpose of raising revenue to defray the general expenses of such city, it is invalid.

Error to Court of Law and Chancery of City of Norfolk.

Loyall & Taylor, for plaintiff in error.

James F. Duncan, for defendant in error.

HARRISON, J.--This action of trespass on the case in assumpsit involves the right of the City of Norfolk to assess a circus license tax, that is exhibiting beyond the territorial limits of the city, but within one mile of such limits.

The facts agreed of record are as follows: "That John F. Robinson gave a circus performance on September 16th, 1906, wholly within the county of Norfolk, within one mile of the corporate limits of the City of Norfolk, but the territorial limits of the City of Norfolk do not extend to the locality where said performance was given. That no parade in said city was given. That this suit is brought to collect a license tax imposed by the City of Norfolk under section 55 of an ordinance of the City of Norfolk, adopted by the select and common councils of said city on the 10th and 14th of April, 1906, and approved by the Mayor, April 21. 1906. That such parts of the charter and ordinances of the City of Norfolk as are pertinent to the subject matter hereof shall be admissible. That the license tax authorized and collected by section 55 above is not applied to the special object of defraying the expenses incident to the police or other protection furnished circus performances, but to the general expenses of the city.

"That the said John F. Robinson paid the license tax in the county of Norfolk imposed by the State of Virginia.

"That the decision in this suit shall determine the issue in the suit of the City of Norfolk v. Barnum and Bailey, Limited, pending in this court."

The whole matter of law and fact was heard and determined by the court, and judgment rendered in favor of the city for tax assessed, with interest and costs.

This demand of the city is in pursuance f section 55 of its general tax ordinance, imposing taxes upon property, persons and licenses for all city rurposes, and is as follows:

"55. Cireuses or menageries, within the city or within one mile of the boundary thereof, for every twenty-four hours or part thereof, including one rarade, $350.00 each, and for each

parade of a circus or menagerie, not included in the above, $350.00. Side shows, for each tent, within the city, or within one mile of the boundary thereof, $25.00 for every twenty-four hours or part thereof."

The City of Norfolk relies upon section 1032 of the Code as its authority for this ordinance and the assessment of the license tax therein provided for. That section is as follows:

"The jurisdiction of the corporate authorities of each town or city, in criminal matters and for imposing and collecting a license tax on all shows, performances, and exhibitions, shall extend one mile beyond the corporate limits of such town or city."

The payment of this tax is resisted by the defendant as an unwarranted and invalid exercise of the taxing power by the City of Norfolk.

For the purposes of taxation, the Constitution has divided the State into counties and magisterial districts, cities and towns. Each of these sub-divisions has its territorial limits fixed, each being distinct and separate from the other. What is meant by the words "territorial limits," in section 168 of the Constittion, the actual boundaries of each of such subdivisions, as the same are fixed by law. It would seem to be fundamental that one of these communities cannot, for its own. benefit, tax one of the others which has no share in the benefit to be derived from such taxation.

The circus in question was being exhibited in Norfolk county. The territorial limits of that county embraced the whole county, and it cannot be seriously contended that the Legislature can create a taxing district in a county from which a city shall raise revenue for the exclusive benefit of such city. The principle that one territory cannot be taxed for the benefit of another is fundamental, and well recognized by the authorities on the subject. It does not rest alone upon the theory of taxation without representation, but upon the principle that private property cannot be taken for anything but a public use. Cooley on Taxation (2nd ed.), Ch. 5, p. 140, et seq., and cases cited.

At pp. 141-2, this learned author says: "It can therefore be stated with emphasis, that the burden of a tax must be made to rest upon the State at large, or upon any particular district of the State, according as the purpose for which it is levied is of general concern to the whole State, or on the other hand, per

tains only to the particular district. A State purpose must be accomplished by State taxation; a county purpose by county taxation; or a public purpose for any inferior district by taxation of such district. This is not only just but it is essential. To any extent that one man is compelled to pay in order to relieve others of a public burden properly resting upon them, his property is taken for private purposes, as plainly and palpably as it would be if appropriated to the payment of the debts or the discharge of obligations which the person thus relieved by his payment might owe to private parties." And again at p. 161 it is said: "It is certainly difficult to understand how the taxation of a district can be defended where people have no voice in voting it, in selecting the purposes, or in expending it."

The only case in Virginia on the subject of extra-territorial taxation is Langhorne &c. v. Robinson, 20 Gratt., 661. In this case an Act which authorized the city of Lynchburg to tax property within its corporate limits and for one-half a mile beyond its boundaries, for the purpose of paying interest on bonds of the Va. & Tenn. R. Co., was held by a divided court to be constitutional. This has been termed by Judge Cooley a doubtful case. (Cooley on Taxation, 160.) That case arose under the Constitution of 1830, which imposed no restriction upon the Legislature with respect to its power of taxation; whereas, the existing Constitution provided that, "all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax."

It was not until the adoption of the Constitution of 1851, that it was required that taxation should be equal and uniform. The case of Langhorne &c. v. Robinson, was criticised in St. Charles v. Nolle, 51 Mo., 124, which follows the case of Weston v. Wells, 22 Mo., 384. In the latter case the Legislature had undertaken to empower the city to tax lands adjoining the city to the extent of half a mile for local purposes, and the city, under this authority, had imposed taxes which the plaintiff resisted. The court pronounced the law unconstitutional, giving as a reason that the proper construction of the Constitution in regard to taking private property for public use, is that it can be taken only for public use, and not for private use at all, and when taken for public use there must be a just compensation allowed and paid. To tax occupations outside of a city for the benefit of those living in a city is, in effect,

taking the property of a citizen for private use; that is, for the use of a particular community, of which the outside citizen forms no part. Whether it be called a tax or the appropriation of property, the result is precisely the same. Power to violate those rights would seem to be quite beyond the lawful authority of any government, and certainly the legislative department of the government cannot arbitrarily take the property of one citizen to give it to another, and, of course, cannot authorize others to do so.

If it were permissible for a city to raise revenue from circuses outside of its territorial limits, it would be equally permissible for the Legislature to authorize that city to levy a tax upon any class of property, in a county contiguous thereto for the exclusive benefit of such city.

It is not necessary in this case to decide whether or not the city of Norfolk can assess a license tax against circuses either within or without its territorial limits, under its police power, for the purpose of police regulation; because, it clearly appears from the record that the circus tax in question was levied for the purpose of raising revenue to defray the general expenses of the city government and not for the special purpose of meeting the expense incident to such police protection as might be afforded the circus. The agreed statment of facts shows: "that the license tax authorized and collected under section 55 of the ordinance is not applied to the special object of defraying the expenses incident to the police or other protection furnished circus performances, but to the general expenses of the city." That the tax in question was intended for general revenue purposes and not specially for police regulation, is shown by the ordinance itself, the preamble to which is as follows:

"1. Be it ordained by the common and select councils of the city of Norfolk, that no persons shall engage in any business in the said city of Norfolk, for which a license is required by the laws of the Commonwealth, or the ordinances of said city, without first having applied for and obtained such license, under the penalty or penalties hereinafter provided, as a part of this ordinance; and that for the year beginning on the 1st day of February, 1906, and for each year thereafter, while this ordinance is in force the taxes on lands and lots, persons, incomes and other property for the support of the city govern