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erty, according to kind and quantity, and without reference to value. The inequality of the mode of taxation was the object to be avoided. We cannot believe that they intended that all the public burdens should be borne by those having property in possession, wholly exempting the rest of the community, who, [*513] by the same constitution were made secure in the exercise of the rights of suffrage, and all the immunities of the citizen." And in another case, where an assessment of highway labor is compared with one upon adjacent property for widening a street, which had been held not to be taxation, as that term was understood in the Constitution, — it is said: "An assessment of labor for the repair of roads and streets is less like a tax than is such an assessment. The former is not based upon, nor has it any reference to, property or values owned by the person of whom it is required, whilst the latter is based alone upon the property designated by the law imposing it. Nor is an assessment a capitation tax, as that is a sum of money levied upon each poll. This rate, on the contrary, is a requisition for so many days' labor, which may be commuted in money. No doubt, the number of days levied, and the sum which may be received by commutation, must be uniform within the limits of the district or body imposing the same. This requisition for labor to repair roads is not a tax, and hence this exemption is not repugnant to the constitution." 2

It will be apparent from what has already been said, that it is not essential to the validity of taxation that it be levied according to rules of abstract justice. It is only essential that the legislature keep within its proper sphere of action, and not impose burdens under the name of taxation which are not taxes in fact; and its decision as to what is proper, just, and politic, must then be final and conclusive. Absolute equality and strict justice are unattainable in tax proceedings. The legislature must be left to

1 Sawyer v. City of Alton, 3 Scam. 130.

2 Town of Pleasant v. Kost, 29 Ill. 494.

' Frellsen v. Mahan, 21 La. An. 79; People v. Whyler, 41 Cal. 351; Warren v. Henley, 31 Iowa, 43. In this last case, Beck, J., criticises the position taken ante, pp. 507, 508, that the cost of a local improvement cannot be imposed on the adjoining premises irrespective of any apportionment, and appears to suppose our views rest upon the injustice of such a proceeding. This is not strictly correct; it may or may not be just in any particular case; but taxation necessarily implies apportionment, and even a just burden cannot be imposed as a tax without it.

decide for itself how nearly it is possible to approximate so desirable a result. It must happen under any tax law that some property will be taxed twice, while other property will escape taxation altogether. Instances will also occur where persons will be taxed as owners of property which has ceased to exist. The system in vogue for taking valuations of property fixes upon a certain time for that purpose, and a party becomes liable to be taxed upon what he possesses at the time the valuing officer calls upon him. Yet changes of property from person to person are occurring while the valuation is going on, and the same parcel of property is found by the assessor in the hands of two different persons, and is twice assessed, while another parcel for similar reasons is not assessed at all. Then the man who owns property when the as

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sessment is taken may have been deprived of it by acci- [* 514] dent or other misfortune before the tax becomes payable; but the tax is nevertheless a charge against him. And when the valuation is only made once in a series of years, the occasional hardships and inequalities in consequence of relative changes in the value of property from various causes become sometimes very glaring. Nevertheless, no question of constitutional law is involved in these cases, and the legislative control is complete.1

The legislature must also, except when an unbending rule has been prescribed for it by the constitution, have power to select in its discretion the subjects of taxation. The rule of uniformity requires an apportionment among all the subjects of taxation within the districts; but it does not require that every thing which the

1 In Shaw v. Dennis, 5 Gilm. 418, objection was taken to an assessment made for a local improvement under a special statute, that the commissioners, in determining who should be liable to pay the tax, and the amount each should pay, were to be governed by the last assessment of taxable property in the county. It was insisted that this was an unjust criterion, for a man might have disposed of all the taxable property assessed to him in the last assessment before this tax was actually declared by the commissioners. The court, however, regarded the objection as more refined than practical, and one that, if allowed, would at once annihilate the power of taxation. "In the imposition of taxes, exact and critical justice and equality are absolutely unattainable. If we attempt it, we might have to divide a single year's tax upon a given article of property among a dozen different individuals who owned it at different times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The legislature must adopt some practicable system; and there is no more danger of oppression or injustice in taking a former valuation than in relying upon one to be made subsequently."

legislature might make taxable shall be made so in fact. Many exemptions are usually made from taxation from reasons the cogency of which is at once apparent. The agencies of the national government, we have seen, are not taxable by the States; and the agencies and property of States, counties, cities, boroughs, towns, and villages are also exempted by law, because, if any portion of the public expenses was imposed upon them, it must in some form be collected from the citizens before it can be paid. No beneficial object could therefore be accomplished by any such assessment. The property of educational and religious institutions is also generally exempted from taxation by law upon very similar considerations, and from a prevailing belief that it is the policy and the

interest of the State to encourage them. If the State [*515] * may cause taxes to be levied from motives of charity or gratitude, so for the like reasons it may exempt the objects of charity and gratitude from taxation. Property is sometimes released from taxation by contract with the State and corporations, and specified occupations are sometimes charged with specific taxes in lieu of all taxation of their property. A broad field is here opened to legislative discretion. As matter of State policy it might also be deemed proper to make general exemption of sufficient of the tools of trade or other means of support to enable the poor man, not yet a pauper, to escape becoming a public burden. There is still ample room for apportionment after all such exemptions have been made. The constitutional requirement of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burden. The power to determine the persons and the objects to be taxed is trusted exclusively to the legislative department; S

As in the case of other special privileges, exemptions from taxation are to be strictly construed. Trustees of M. E. Church v. Ellis, 38 Ind. 3; State v. Mills, 34 N. J. 177. It has been generally held that an exemption from taxation would not exempt the property from being assessed for a local improvement. Matter of Mayor, &c., 11 Johns. 77; Baltimore v. Cemetery Co., 7 Md. 517; La Fayette v. Orphan Asylum, 2 La. An. 1; Pray v. Northern Liberties, 31 Penn. St. 69; Le Fever v. Detroit, 2 Mich. 586; Lockwood v. St. Louis, 24 Mo. 20; Broadway Baptist Church v. McAtee, 8 Bush, 508; s. c. 8 Am. Rep. 480.

2 State v. North, 27 Mo. 464; People v. Colman, 3 Cal. 46; Durach's Appeal, 62 Penn. St. 494.

3 Wilson v. Mayor, &c., of New York, 4 E. D. Smith, 675; Hill v. Higdon, 5 Ohio, N. s. 245; State v. Parker, 33 N. J. 313. Notwithstanding a require

but over all those the burden must be spread, or it will be unequal and unlawful as to those who are selected to make the payment.1

ment that "the rule of taxation shall be uniform," the legislature may levy specific State taxes on corporations, and exempt them from municipal taxation. So held on the ground of stare decisis. Kneeland v. Milwaukee, 15 Wis. 454.

1 In the case of Weeks v. Milwaukee, 10 Wis. 242, a somewhat peculiar exemption was made. It appears that several lots in the city upon which a new hotel was being constructed, of the value of from $150,000 to $200,000, were purposely omitted to be taxed, under the direction of the Common Council," in view of the great public benefit which the construction of the hotel would be to the city." Paine, J., in delivering the opinion of the court, says: "I have no doubt this exemption originated in motives of generosity and public spirit. And perhaps the same motives should induce the tax-payers of the city to submit to the slight increase of the tax thereby imposed on each, without questioning its strict legality. But they cannot be compelled to. No man is obliged to be more generous than the law requires, but each may stand strictly upon his legal rights. That this exemption was illegal, was scarcely contested. I shall, therefore, make no effort to show that the Common Council had no authority to suspend or repeal the general law of the State, declaring what property shall be taxable and what exempt. But the important question presented is, whether, conceding it to have been entirely unauthorized, it vitiates the tax assessed upon other property. And upon this question I think the following rule is established, both by reason and authority. Omissions of this character, arising from mistakes of fact, erroneous computations, or errors of judgment on the part of those to whom the execution of the taxing laws is intrusted, do not necessarily vitiate, the whole tax. But intentional disregard of those laws, in such manner as to impose illegal taxes on those who are assessed, does. The first part of the rule is necessary to enable taxes to be collected at all. The execution of these laws is necessarily intrusted to men, and men are fallible, liable to frequent mistakes of fact and errors of judgment. If such errors, on the part of those who are attempting in good faith to perform their duties, should vitiate the whole tax, no tax could ever be collected. And, therefore, though they sometimes increase improperly the burdens of those paying taxes, that part of the rule which holds the tax not thereby avoided is absolutely essential to a continuance of government. But it seems to me clear that the other part is equally essential to the just protection of the citizen. If those executing these laws may deliberately disregard them, and assess the whole tax upon a part only of those who are liable to pay it, and have it still a legal tax, then the laws afford no protection, and the citizen is at the mercy of those officers, who, by being appointed to execute the laws, would seem to be thereby placed beyond legal control. I know of no considerations of public policy or necessity that can justify carrying the rule to that extent. And the fact that in this instance the disregard of the law proceeded from good motives ought not to affect the decision of the question. It is a rule of law that is to be established; and, if established here because the motives were good, it would serve as a precedent where the motives were bad,

In some of the States it has been decided that the par[* 516] ticular provisions inserted in their constitutions to insure uniformity are so worded as to forbid exemptions. Thus the Constitution of Illinois provided that "the General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property."1 Under this it has been held that exemption. by the legislature of persons residing in a city from a tax levied to repair roads beyond the city limits, by township authority,— the city being embraced within the township which, for that purpose, was the taxing district, was void. It is to be observed of these cases, however, that they would have fallen within the general principle laid down in Knowlton v. Supervisors of [* 517] Rock Co., and the legislative acts* under consideration might perhaps have been declared void on general principles, irrespective of the peculiar wording of the constitution. These cases, notwithstanding, as well as others in Illinois, recognize the power in the legislature to commute for a tax, or to contract for its release for a consideration. The Constitution of Ohio provides that "laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise; and also all real and personal property, according to its true value in money." Under this section it was held not competent for the legislature to provide that lands within the limits of a city should not be taxed for any city purpose, except roads, unless the same were laid off into town lots and

and the power usurped for purposes of oppression." pp. 263–265. See also Henry v. Chester, 15 Vt. 460; State v. Collector of Jersey City, 4 Zab. 108; Insurance Co. v. Yard, 17 Penn. St. 331; Williams v. School District, 21 Pick. 75; Hersey v. Supervisors of Milwaukee, 16 Wis. 185; Crosby v. Lyon, 37 Cal. 242. But it seems that an omission of property from the tax-roll by the assessor, unintentionally, through want of judgment and lack of diligence and business habits, will not invalidate the roll. Dean v. Gleason, 16 Wis. 1. In Scofield v. Watkins, 22 Ill. 72, and Merritt v. Farriss, ib. 311, it appears to be decided that even in the case of intentional omissions, the tax-roll would not be invalidated, but the parties injured would be left to their remedy against the assessor. See also Dunham v. Chicago, 55 Ill. 361.

1 Art. 9, § 2, of the old Constitution.

2 O'Kane v.

Treat, 25 Ill. 561; Hunsaker v. Wright, 30 Ill. 146. See also Trustees v. McConnell, 12 Ill. 138.

39 Wis. 410.

4 Art. 12, § 2.