Addressing himself to this contention, Chief Justice Chase, who delivered the opinion of the court, declared that the first answer was "that the judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So if a particular tax bears heavily upon a corporation, or a class of corporations, it cannot, for that reason only, be pronounced contrary to the Constitution."

11 Cooley on Taxation (3rd Ed.),

P. 9.

"All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident." M'Culloch v. Maryland, 4 Wheat. (U. S.) 316, 4 L. Ed. 579.

"The power of taxation, however vast in its character and searching in its extent, is necessarily limited to subjects within the jurisdiction of the state. These subjects are persons, property and business. Whatever form taxation may assume, whether duties, imposts, excises or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the

as

"' 11

taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmutations. And the amount of the taxation may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufacture, and in transportation. Unless restrained by provisions of the Federal Constitution, the power of the state as to the mode, form, and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction." Cleveland, P. & A. R. Co. v. Pennsylvania (State Tax on Foreign-held Bonds), 15 Wall. (U. S.) 300, 21 L. Ed. 179.

"Except where specially restrained, the states possess it [taxing power] to the fullest extent. Prima facie it extends to all property, corporeal and incorporeal, and to every business by which livelihood or profit is sought to be made within their jurisdiction." Farrington v. Tennessee, 95 U. S. 679, 24 L. Ed. 558.

Territorial limitations on power to tax, see 84607, infra.

12 Cooley on Taxation (3rd Ed.), p. 17.

13 Peirce v. Boston, 3 Metc. (Mass.) 520.

14 Cooley on Taxation (3rd Ed.),

p. 20.

17

15 Kentucky. Newport v. Com., 106 Ky. 434, 45 L. R. A. 518, 51 S. W. 433, 50 S. W. 845.

Missouri. Carondelet v. Picot, 38 Mo. 125.

Nebraska. Nebraska City v. Nebraska City Hydraulic Gas-Light & Coke Co., 9 Neb. 339, 2 N. W. 870.

New Jersey. Camden v. Allen, 2 Dutch 398.

Ohio. Peter v. Parkinson, 83 Ohio St. 36, Ann. Cas. 1912 A 751, 93 N. E. 197.

16 Peirce v. Boston, 3 Metc. (Mass.) 520; Nebraska City v. Nebraska City Hydraulic Gas-Light & Coke Co., 9 Neb. 339, 2 N. W. 870.

17It is well settled that moneys for other than public purposes cannot be raised by taxation, and that exertion of the taxing power for merely private purposes is beyond the authority of the state." Jones v. Portland, 245 U. S. 217, 62 L. Ed. 252.

On the subject, generally, of the purposes for which taxes may be imposed, see Cooley on Taxation (3rd Ed.), c. iv, p. 180 et seq.

"While the ultimate authority to determine the validity of legislation under the Fourteenth Amendment is rested in this court, local conditions are of such varying character that what is or is not a public use in a particular state is manifestly a matter respecting which local authority, legislative and judicial, has peculiar facilities for securing accurate information. In that view the judgment of the highest court of the state upon what should be deemed a public use in a particular state is entitled to the highest respect." Jones v. Portland,

supra.

18 Waples v. Marrast, 108 Tex. 5, 184 S. W. 180.

"The purpose to which the state shall apply the proceeds of a tax is not material so long as it is for a public purpose, and that the payment of the debts of a state is a public purpose does not admit of doubt," and therefore a money exaction from railroad companies may be a tax notwithstanding the fact that its proceeds are to be used only for the payment of the principal and interest due and to become due upon the bonds issued to the companies by the state and that it is to cease when such principal and interest have been fully paid. Pacific R. Co. v. Maguire, 20 Wall. (U. S.) 36, 22 L. Ed. 282.

The fact that an enterprise in aid of which a tax is imposed is of a quasi public character, so that the public, or a portion of the public, will be incidentally benefited thereby, does not render the purpose of the tax a 'public purpose. Parkersburg V. Brown, 106 U. S. 487, 27 L. Ed. 238; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455; Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39.

A state cannot impose taxes (nor lawfully authorize a municipality to incur an indebtedness for the payment of which taxation will be necessary) in order to aid the citizens in a particular locality who have suffered losses by reason of a flood, conflagration or other calamity. Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39 (in this case the legislature of Massachusetts had passed a statute empowering the city of Boston to issue bonds for the purpose of raising

money to aid the owners of buildings which were burned in the conflagration in that city in 1872, and to lend the money to them on mortgages on the land. It was held that, as taxation would be necessary to pay the bonds, and the purpose was not public, the statute was not within the power of the legislature).

Nor can a state authorize a town to issue its bonds in aid of the manufacturing enterprise of individuals, for the taxes necessary to pay the bonds would, if collected, be a transfer of the property of individuals to aid in the projects of gain and profit of others, and not for a public use, in the proper sense of that term. Parkersburg v. Brown, 106 U. S. 487, 27 L. Ed. 238; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455.

Municipal fuel yard from which coal, wood, etc., is to be sold to the city's inhabitants at cost is a public purpose. Jones v. Portland, 245 U. S. 217, 62 L. Ed. 252, aff'g 113 Me. 123, 93 Atl. 41.

19 Cooley on Taxation (3rd Ed.), p. 22.

"The power of taxation

is exercised upon the assumption of an equivalent rendered to the taxpayer in the protection of his person and property, in adding to the value of such property, or in the creation and maintenance of public conveniences in which he shares." Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 50 L. Ed. 150, 4 Ann. Cas. 493.

20 According to Vattel the right to tax an individual results from the general protection afforded to him and his property. Bk. 1, c. 20.

Mr. Black, however, in his work on tax titles, declares that he "can by no

means subscribe to the doctrine that a tax is a payment made to the gov ernment in consideration of the advantages it offers, or as an equivalent for the security it affords, or a pledge to secure the enjoyment of the remainder of one's property. For the advantages of organized society are not a matter of bargain and sale, and protection in the enjoyment of his rights is a duty owed by the state to every citizen, whether he can or does pay taxes or not, and this duty would be just as much obligatory on the state if it needed no taxes." Black on Tax Titles (2nd Ed.), § 2.

While the subject of special assessments is foreign to the scope of this chapter and will, therefore, not be treated in detail, it may not be amiss here to state some of the general principles, underlying such form of taxation, as laid down by Judge Cooley. "Special assessments," says that eminent author, "are a peculiar species of taxation, standing apart from the general burdens imposed for state and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in

VII Priy. Corp.-38

*

consideration of the special benefit, shall be made by the persons receiving it. The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies. The distinction between them and ordinary taxation has thus been pointed out in a [Mississippi] case: A local assessment can only be levied on land; it cannot, as a tax can, be made a personal liability of the taxpayer; it is an assessment on the thing supposed to be benefited. A tax is levied on the whole state or a known political subdivision, as a county or a town. A local assessment is levied on property situated in a district created for the express purpose of the levy, and possessing no other function, or even existence, than to be the thing on which the levy is made. A tax is a continuing burden and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality,—it is brought into being for a particular occasion, and to accomplish

a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected by and responsible to the community upon which it is imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. It is like a tax in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those upon whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.' Not all these differences are necessarily existent in every case, but in the main the characterization is accurate as it is forcible." Cooley on Taxation (3rd Ed.), p. 1153.

To what extent special assessments are included in the word " "taxes" as that word is used in the constitutions and statutes of the several states is a question upon which the courts of the different jurisdictions are at variance.