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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; and especially the words are not 'equally upon property,' or words to that effect, as in the constitution of Louisiana, Indeed,

the language in question can hardly be said to impose any restriction upon the General Assembly at all, except what would be imposed by the fact of our free institutions, and the general principles of constitutional law, here and everywhere in this country prevalent. 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."

The case in which these words were used was different from the case at bar in this that it involved an assessment for a benefit arising from the opening of a street, and not an ordinary tax. But the words quoted are entitled to great weight as an interpretation of the constitution, not only from the eminence of Judge Ames as a jurist, but also from his prominence as a member of the General Assembly when the constitution was adopted giving him a peculiar opportunity to know the intended scope of its provisions. Further evi

dence that the clause in question has been understood to be directory merely is found in the fact that in the proposed revision of the constitution, reported to the General Assembly in 1898, the commission recommended a change from the directory form of "ought to be fairly distributed among its citizens," to the mandatory form of "shall be fairly distributed."

Historically, therefore, the clause has been treated as directory rather than mandatory. Nevertheless, a declaration of right or duty which has been deemed sufficiently important to be embodied in the constitution should not be put aside as a mere generality, if it is of such a character that effect can be given to it as the equivalent of a more positive statement. But suppose the clause in question to

be equivalent to the mandatory form: can we hold it to be a limitation on the power of exemption? Undoubtedly taxation may be included among the burdens which are to be fairly distributed. From this postulate the plaintiff argues that an exemption is contrary to the practical direction of the constitution, and, hence, unconstitutional. This conclusion does not follow. There are burdens of citizenship besides taxation. Indeed, taxation is not strictly a burden incidental to citizenship, since persons not citizens of the State may be taxed for property within it. Jury and military duty at once come to mind as among the burdens of the State. Hence, if it be held that because taxation is a burden which "ought to be fairly distributed" the legislature has no power to make exemptions, it must follow that no exemptions from jury or military duty could be made. But immediately following the adoption of the constitution the act relating to jurors exempted some, but not all, State and town officers, and some who had no public duties, such as cashiers of banks, and all persons over sixty-five years of age. The act relating to the militia embraced only white male citizens not over forty-five years of age, and specially exempted many, but not all, State and town officers; persons who had held the office of governor or lieutenant-governor of the State; the inhabitants of New Shoreham and Jamestown; and all persons who had conscientious scruples against bearing arms.

In the act relating to taxes, houses for schools, academies and colleges, owned by any company or corporation, and the land on which they stood, were exempted. These exemptions have not only been continued but have been enlarged, without any question as to their validity. It may be said that these exemptions are fair, because they apply to classes of persons. Some of them are essentially personal; but if they are to be sustained only on the ground of fairness, then the power of the General Assembly to make exemptions is no longer a question. We have cited these instances to show that immediately upon the adoption of the constitution, and continuously since, the power of the General Assembly to

make exemptions from the burdens of the State, notwithstanding the clause above quoted, has not been questioned. The same conclusion was forcibly stated by Tillinghast, J., in Brown University v. Granger, 19 R. I. 704: "That it means that the General Assembly has no power to exempt any property whatever from taxation, or that property theretofore exempted by charter was to be affected thereby, is wholly unreasonable. The whole course of State legislation, from the adoption of the constitution to the present time, conclusively negatives any such construction." It is axiomatic that a law is to be held constitutional unless it violates a provision of the constitution. In view of the equality of the branches of government, the judicial cannot annul the action of the legislative branch unless its duty to do so is plain and peremptory. Hence the provision which a court is asked to apply as a limitation of legislative power must also be plain and peremptory. The statement of a result to be reached which leaves the mode of reaching it to the discretion of the legislature gives no power to the court to say that a law which may tend to that result is void, even though it may seem to be unwise or unjust. Whether, therefore, a declaration in a constitution is a limitation of the power of the legislature, depends upon its terms. As stated in Cooley's Cons. Lim. 6th Ed. 200, 201: "Any legislative act, which does not encroach upon the powers apportioned to the other departments of the government, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution and the case shown to be within them." See also State v. Narragansett, 16 R. I. 424; Carr v. Brown 20 R. I. 215; State v. Dalton, 22 R. I. 77. We have already said that taxation is a legislative function. In Meriwether v. Garrett, 102 U. S. 472, 501, Waite, C. J., announced as the proposition of the court: "The power of taxation is legislative, and cannot be exercised otherwise than under the authority of the legislature."

This being so, a law relating to taxation cannot be held to be unconstitutional upon general or uncertain expressions, but only upon plain restrictions.

Courts have been very strict in requiring these plain limitations. Henley v. State, 98 Tenn. 665; Sharpless v. Mayor, 21 Pa. St. 147; People v. Gillson, 109 N. Y. 389, 398; Bertholf v. O'Reilly, 74 N. Y. 509, 516; Walker v. Cincinnati, 21 Ohio St. 14; Phoenix Co. v. Fire Dept., 23 So. Rep. 843. In cases of taxation the following are examples. In Booth v. Woodbury, 32 Conn. 118, relating to a gratuity to men drafted in the civil war, the court said: "If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy and not of natural justice, and the determination of the legislature is conclusive." Under the constitution of Wisconsin, requiring that the rule of taxation shall be uniform, it was held that an exemption of certain railroad lands from taxation did not violate this provision. Wisconsin R. R. v. Taylor, 52 Wis. 37. Lund v. Chippewa, 93 Wis. 640. Con. stitution of Louisiana: "Taxation shall be equal and uniform. throughout the State. All property shall be taxed in proportion to its value." Held that the legislature might exempt a certain amount of property and income. New Orleans v. Fouchy, 30 La. An. 910.

Constitution of New Jersey: "Property shall be assessed for taxes under general laws and by uniform rules according to its true value." Held that this did not preclude the legislature from exempting shares in all corporations except banks. State v. Collins, 43 N. J. L. 562.

Constitution of Alabama: "No man or set of men are entitled to exclusive, separate, public emoluments or privileges, but in consideration of public services." Held that the legislature might commute the tax of corporations. Daughrill v. Alabama, 31 Ala. 91.

In Bank v. New Albany, 11 Ind. 139, it was held that the legislature could exempt a bank from taxation for municipal purposes, and in Mills v. Cook, 56 Miss. 40, that the legislature could exempt from taxation a private manufacturing corporation.

The rationale of these decisions is that although there have

been constitutional restrictions on taxation, from which it might be argued that the same reasons would apply to the case in question, yet, if the case was not necessarily included within the restriction and there was no specific provision of restraint, the court could not declare an act void which the legislature had passed upon the subject within its proper sphere. Applying this doctrine to the case at bar, we have a constitutional provision, which necessarily leaves to the legislature the mode of carrying it out, with no other restriction, if we assume it to be one, than that the burden shall be fairly distributed. This clearly implies a reasonable power of exemption, at the least, since the distribution is not to be positive, but fair. Hence the power of the General Assembly to make exemptions is clear.

The cases cited by the plaintiff are distinguishable. In Brewer v. Brewer, 62 Me. 62, the constitutional provision was: "All taxes upon real estate, assessed by authority of this State, shall be apportioned and assessed equally, according to just value thereof." An act which authorized towns to exempt manufacturing establishments thereafter erected was held to violate this provision of the constitution, because, as taxes were apportioned among towns in the ratio of their valuations, if some towns exempted such establishments and others did not, the apportionment would not be equal. Allen v. Jay, 60 Me. 124, an act authorizing a town to loan money to a private enterprise was held to be unconstitutional. In Lancaster v. Clayton, 86 Ky. 373, the constitution providing "that no man or set of men are entitled to exclusive, separate, public emoluments or privileges from the community, but in consideration of public services," it was held that an act exempting a hotel estate was in violation of this provision.

In

Without reviewing the cases in detail, they deal, generally, with two classes of acts: those which authorize direct aid to private affairs, and those which violate some express or evident restriction of the constitution. With such a doctrine we should not disagree.