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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.

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 botel 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 bave 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.2 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 4 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 III. 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 III. 361.

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

? O'Kane v. Treat, 25 III. 561; Hunsaker v. Wright, 30 III. 146. See also Trustees v. McConnell, 12 Ill. 138.

3 9 Wis. 410. 4 Art. 12, $ 2.

recorded as such, or into out-lots not exceeding five acres each.1 Upon this case we should make the same remark as upon the Illinois cases above referred to.

It is, moreover, essential to valid taxation that the taxing officers be able to show legislative authority for the burden they assume to impose in every instance. Taxes can only be voted by the people's representatives. They are in every instance an appropriation by the people to the government, which the latter is to expend in furnishing the people protection, security, and such facilities for enjoyment as it properly pertains to government to provide. This principle is a chief corner-stone of Anglo-Saxon liberty; and it has operated not only as an important check on government, in preventing extravagant expenditures, as well as unjust and tyrannical action, but it has been an important guaranty of the right of private property. Property is secure from the lawless grasp of the government, if the means of existence of the government depend upon the voluntary grants of those who own the property. Our ancestors coupled their grants with demands for the redress of grievances; but in modern times the surest protection against grievances has been found to be to vote specific taxes for the specific purposes to which the people's representatives are willing they shall be devoted ; ? and the persons exercising the functions of government must then become petitioners if they desire money for other objects. And then these grants are only made periodically. Only a few things, such as the salaries of officers, the interest upon the public debt, the support * of schools, and the like, are provided for by permanent [* 518] laws; and not always is this done. The government is dependent from year to year on the periodical vote of supplies. And this vote will come from representatives who are newly chosen by the people, and who will be expected to reflect their views regarding the public expenditures. State taxation, therefore, is not likely to be excessive or onerous, except when the people, in times of financial ease, excitement, and inflation, have allowed the incurring of extravagant debts, the burden of which remains after the excitement has passed away.

But it is as true of the political divisions of the State as it is of

1 Zanesville v. Auditor of Muskingum County, 5 Ohio, N. s. 589.
: Hoboken v. Phinney, 5 Dutch. 65.

the State at large, that legislative authority must be shown for every levy of taxes. The power to levy taxes by these divisions. comes from the State. The State confers it, and at the same time exercises a parental supervision by circumscribing it. Indeed, on general principles, the power is circumscribed by the rule that the taxation by the local authorities can only be for local purposes. Neither the State nor the local body can authorize the imposition of a tax on the people of a county or town for an object in which the people of the county or town are not concerned. And by some of the State constitutions it is expressly required that the State, in creating municipal corporations, shall restrict their power of taxation over the subjects within their control. These requirements, however, impose an obligation upon the legislature which only its sense of duty can compel it to perform. It is evident that if the legislature fail to enact the restrictive legislation, the courts have no power to compel such action. Whether in any case a charter of incorporation could be held void on the ground that it conferred unlimited powers of taxation, is a question that could not well arise, as a charter is probably never granted which does not impose some restrictions; and where that is the case, it must be inferred that those were all the restrictions the legislature deemed important, and that therefore the constitutional duty of the legislature has been performed.4

Clark v. Davenport, 14 Iowa, 494; Burlington v. Kellar, 18 Iowa, 59; Mays v. Cincinnati, 1 Ohio, N. s. 273.

See ante, p. 213.

2 Foster v. Kenosha, 12 Wis. 616. 3 In Hill v. Higdon, 5 Ohio, N. s. 248, Ranney, J., says of this provision: "A failure to perform this duty may be of very serious import, but lays no foundation for judicial correction." And see Maloy v. Marietta, 11 Ohio, N. 8. 638.

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The Constitution of Ohio requires the legislature to provide by general laws for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, &c. The general law authorizing the expense of grading and paving streets to be assessed on the grounds bounding and abutting on the street, in proportion to the street front, was regarded as being passed in attempted fulfilment of the constitutional duty, and therefore valid. The chief restriction in the case was, that it did not authorize assessment in any other or different mode from what had been customary. Northern Indiana R.R. Co. v. Connelly, 10 Ohio, N. s. 165. The statute also provided that no improvement or repair of a street or highway, the cost of which was to be assessed upon the owners, should be directed without the concurrence of two-thirds of the members elected to the municipal council, or unless two-thirds of the owners to be charged

* When, however, it is said to be essential to valid [* 519] taxation that there be legislative authority for every tax that is laid, it is not meant that the legislative department of the State must have passed upon the necessity and propriety

of every particular tax; * but those who assume to seize [* 520] the property of the citizen for the satisfaction of the tax must be able to show that that particular tax is authorized, either by general or special law. The power inherent in the government to tax lies dormant until a constitutional law has been passed call ing it into action, and is then vitalized only to the extent provided by the law. Those, therefore, who act under such law should be careful to keep within its limits, lest they remove from their acts

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should petition in writing therefor. In Maloy v. Marietta, 11 Ohio, N. s. 639, Peck, J., says: “This may be said to be a very imperfect protection; and in some cases will doubtless prove to be so; but it is calculated and designed, by the unanimity or the publicity it requires, to prevent any flagrant abuses of the power. Such is plainly its object; and we know of no rights conferred upon courts to interfere with the exercise of a legislative discretion which the constitution has delegated to the law-making power." And see Weeks v. Milwaukee, 10 Wis. 242. The Constitution of Michigan requires the legislature, in providing for the incorporation of cities and villages, to "restrict their power of taxation," &c. The Detroit Metropolitan Police Law made it the duty of the Board of Police to prepare and submit to the city controller, on or before the first day of May in each year, an estimate in detail of the cost and expense of maintaining the police department, and the Common Council was required to raise the same by general tax. These provisions, it was claimed, were in conflict with the constitution, because no limit was fixed by them to the estimates that might be made. In People v. Mahaney, 13 Mich. 498, the court say: Whether this provision of the constitution can be regarded as mandatory in a sense that would make all charters of municipal corporations and acts relating thereto which are wanting in this limitation invalid, we do not feel called upon to decide in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the nature of the case it was impossible to do more than to make it the duty of the legislature to set some bounds to a power so liable to abuse. A provision which, like the one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined the power to a certain percentage upon taxable property, or to a sum proportioned to the number of inhabitants in the city. Whether the restriction fixed upon would as effectually guard the citizen against abuse as any other which might have been established was a question for the legislative department of the government, and does not concern us on this inquiry."

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