to recover back the excess, but they cannot recover if the payment was voluntary.70 If stock is sold to satisfy an illegal tax, an action of trover or case will lie to recover damages.71 IV. EXEMPTIONS FROM TAXATION § 4630. In general. A public corporation-that is, a corporation established by the state merely as an agency or instrument of government 72 is not taxable. But this principle does not apply to those private corporations, called quasi public,73 which perform services which are peculiarly beneficial to the public, like railroad companies, water and gas companies, and the like. Such corporations are in no sense instruments of government, and their property is taxable to the same extent as the property of any other private corporation, unless it has been expressly exempted by the legislature, and no private such case, at least in the federal courts, where there is a plain and adequate remedy at law. And except where the special circumstances which we have mentioned exist, the party of whom an illegal tax is collected has ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the plaintiff protesting against its enforcement might have had his action, after it was paid, against the officer or the city to recover back the money; or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action. We see no ground for the interposition of a court of equity which would not equally justify such interference in any case of threatened invasion of real or personal property.” See also § 4619, supra. 70 See Stanley v. Board of Sup'rs of Albany Co., 121 U. S. 535, 30 L. Ed. 1000; Exchange Nat. Bank V. 74 Miller, 19 Fed. 372; Mackay v. City & County of San Francisco, 113 Cal. 392, 45 Pac. 696; Indianapolis v. Vajen, 111 Ind. 240, 12 N. E. 311; Louisville & N. R. Co. v. Com., 89 Ky. 531, 12 S. W. 1064. Where bank stock owned by one person is levied upon and advertised for sale to pay another's taxes, when there is no law making such stock distrainable for taxes, and the owner of the stock, with full knowledge of all the facts, and in possession of the stock, pays the tax, although under protest, the payment is voluntary, and cannot be recovered back. Sowles v. Soule, 59 Vt. 131, 7 Atl. 715. 71 Sprague v. Fletcher, 69 Vt. 69, 37 L. R. A. 840, 37 Atl. 239. 72 § 65 et seq., supra. 73 § 73, supra. 74 Thomson v. Union Pac. Ry. Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792; Louisville Water Co. v. Hamilton, 81 Ky. 517; Com. v. Lowell Gas Light Co., 12 Allen (Mass.) 75; People v. Forrest, 97 N. Y. 97. The fact that part, or even most, of the stock of a water or gas company, is owned by the city in which it is located, does not exempt its corporation can claim an exemption from the power of the state to impose taxes, unless the state has granted such an exemption.75 § 4631. Constitutional exemption. Exemptions are sometimes given by the constitution itself, but generally it is left for the legis lature to make provision on the subject within the limitations prescribed by the constitution. A constitutional provision that the legislature may exempt certain property, or the property of certain corporations, from taxation, is not self-executing. It merely authorizes the legislature to create the exemption, and there is no exemption until the legislature has acted in pursuance of such authority.76 § 4632. Legislative power-In absence of constitutional prohibition. In the absence of a constitutional provision to the contrary, the legislature has the right to enter into a contract for exemption, either limited or unlimited, from taxation.77 This rule of law has property from taxation. Louisville "The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals do not flow necessarily from the charter, but must be expressed in it, or they do not exist." Providence Bank v. Billings, 4 Pet. (U. S.) 514, 7 L. Ed. 939. 76 People v. Anderson, 117 Ill. 50, 7 N. E. 625; Congregation of United Brethren of Salem & Vicinity v. Commissioners of Forsyth County, 115 N. C. 489, 20 S. E. 626. And see Sanitary Dist. of Chicago v. Martin, 173 Ill. 243, 64 Am. St. Rep. 110, 50 N. E. 251; Philadelphia v. Barber, 160 Pa. St. 123, 28 Atl. 644; Wagner Free Institute v. Philadelphia, 132 Pa. St. 612, 19 Am. St. Rep. 613, 19 Atl. 297. 77The question is no longer open for argument here, for it is settled by the repeated adjudications of this court, that the state may, by contract based on a consideration, exempt the property of an individual or corporation from taxation, either for a specified period, or permanently." Home of the Friendless v. Rouse, 8 Wall. (U. S.) 430, 19 L. Ed. 495. In the exercise of its power as a local legislature for the District of Columbia, Congress, like any state legislature unrestricted by constitutional provisions, may at its discretion wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property." Gibbons v. District of Columbia, 116 U. S. 404, 29 L. Ed. 680. "The assumption that a state, in exempting certain property from taxation, relinquishes a part of its sovereign power, is unfounded. The taxing power may select its objects of taxation; and this is generally regulated by the amount necessary to answer the purposes of the state." Piqua Branch of State Bank v. Knoop, 16 How. (U. S.) 369, 14 L. Ed. 977. A municipality cannot, in granting a franchise to a public service corpo long been established.78 That it is an erroneous rule of law has been maintained by various judges 79 who have recognized its existence ration, contract away the state's power to tax such corporation. Sioux City St. R. Co. v. Sioux City, 138 U. S. 98, 34 L. Ed. 898. A tax sale of property exempt from taxation is void, and, hence, in an action of ejectment brought by a canal company, the canal and works of which are exempt from taxation, the offer of the defendant to prove a tax title to that part of the canal involved is properly rejected. Mackall v. Chesapeake & O. Canal Co., 94 U. S. 308, 24 L. Ed. 161. A franchise-tax statute which declares that its provisions "shall not be construed to apply" to any corporation which has not theretofore exercised or may not thereafter exercise any municipal franchise is not invalid as an attempt on the part of the legislature to control the courts in the performance of their function of interpreting statutes, the quoted words being equivalent to the words "shall not apply," and being intended to limit, not the judicial power of interpretation, but rather the scope of the statute itself. State Board of Assessors v. Plainfield Water Supply Co., 67 N. J. L. 357, 52 Atl. 230. Since the statutes of a state can have no effect beyond its territorial limits, except in so far as other states may see fit to recognize them, a charter or statutory provision exempting the property or stock of a corporation from taxation cannot be set up in another state to defeat a tax levied by such state upon property situated therein, or upon shares of stock held by residents thereof. Appeal Tax Court of Baltimore v. Gill, 50 Md. 377; Appeal Tax Court of Baltimore v. Patterson, 50 Md. 354; People v. Coleman, 135 N. Y. 231, 31 N. E. 1022. 78 It is too late to raise the ques tion in the Federal Supreme Court of the power of a state legislature to grant a perpetual exemption; that it has the power to bind the state and thus to bind its successors is settled. Humphrey v. Pegues, 16 Wall. (U. S.) 244, 21 L. Ed. 326. "It has been held, and the doctrine has been so often repeated that it is no longer an open question, that the legislature of a state may exempt the property of particular persons or corporations from taxation, either for a limited time or perpetually." Pickard v. East Tennessee, V. & G. R. Co., 130 U. S. 637, 32 L. Ed. 1051. See also Minot v. Philadelphia, W. & B. R. Co. (The Delaware Railroad Tax), 18 Wall. (U. S.) 206, 21 L. Ed. 888. 79 In delivering the opinion of the court in Ford v. Delta & Pine Land Co., 164 U. S. 662, 41 L. Ed. 590, Mr. Justice Brewer, citing Washington University v. Rouse, 8 Wall. (U. S.) 439, note 19 L. Ed. 498, mentions the fact that there has been strong judicial dissent from the doctrine that the legislature has the power to grant a permanent exemption. In his dis senting opinion in the cited case, Mr. Justice Miller expressed his emphatic disapproval of such doctrine in the following language: "We do not believe that any legislative body, sitting under a state constitution of the usual character, has a right to sell, to give, or to barter away forever the taxing power of the state. This is a power which in modern political societies, is absolutely necessary to the continued existence of every such society. While under such forms of government, the ancient chiefs or heads of the government might carry it on by revenues owned by them personally, and by the exaction of personal service from with regret. But, notwithstanding the fact that it has been vigorously assaulted with earnest dissent, it has survived and is to-day the rule generally accepted.81 The question is, it has been said, one of policy and not of power.82 "The courts of the country are not the proper tribunals to apply the corrective to improvident legislation of this character. If there be no constitutional restraint on the action of the legislature on this subject, there is no remedy, except through the influence of a wise public sentiment, reaching and controlling the conduct of the law-making power, 83 and this is true even though their subjects, no civilized government has ever existed that did not depend upon taxation in some form for the continuance of that existence. To hold, then, that any one of the annual legislatures can, by contract, deprive the state forever of the power of taxation, is to hold that they can destroy the government which they ale appointed to serve, and that their action in that regard is strictly lawful." 80In my view," says Justice Van Syckel of the New Jersey Court of Errors and Appeals, "it is unfortunate that judicial decision has so firmly established the doctrine that the legislature can barter away 80 essential an attribute of government as that of the power to tax, but it is now too late to call it in question." Singer Mfg. Co. v. Heppenheimer, 58 N. J. L. 633, 32 L. R. A. 643, 34 Atl. 1061. "While it were better for the interest of the community that this power [to tax] should on no occasion be surrendered, this court has always held that the legislature of a state, unless restrained by constitutional limitations, has full power over the subject and can make a contract with a corporation to exempt its property from taxation, either in perpetuity or for a limited period of time." Bailey v. Maguire, 22 Wall. (U. S.) 215, 22 L. Ed. 850. 81 There is no subject over which it is of greater moment for the state to preserve its power than that of taxation. It has, nevertheless, been held by this court, not, however, without occasioning earnest dissent from a minority, that the power of taxation over particular parcels of property, or over property of particular persons or corporations, may be surrendered by one legislative body, so as to bind its successors and the state." Tomlinson v. Jessup, 15 Wall. (U. S.) 454, 21 L. Ed. 204. "The power of the legislature of a state to exempt particular parcels of property of individuals or of corporations from taxation, not merely during the period of its own existence, but so as to be beyond the control of the taxing power of succeeding legisla tures, has been asserted in several cases by this court, although against this doctrine there have been earnest protests by individual judges." Hoge v. Richmond & D. R. Co., 99 U. S. 348, 25 L. Ed. 303. 82 Piqua Branch of State Bank v. Knoop, 16 How. (U. S.) 369, 14 L. Ed. 977. 83 Wilmington & W. R. Co. v. Reid, 13 Wall. (U. S.) 264, 20 L. Ed. 568. "A court may appropriately determine whether property taxed was or was not within the taxing power, but if within, not that the power has or has not been discreetly exercised." People v. Commissioners of Taxes & Assessments for City & County of New York, 2 Black (U. S.) 620, 17 L. Ed. 451. it be conceded 84 "that it were better for the interest of the state, that the taxing power ** should on no occasion be surren dered.'' 85 What shall be the scope of the exemption granted will rest in the pleasure of the legislature. Such exemption may extend to all or only to part of the property of the corporation; it may be perpetual or for merely a limited period; it may be unqualified or contingent,86 and it may relieve from all taxes or from only a part thereof.87 This view of the matter is the prevailing one but, as has been indicated, it is not a unanimous one. Some of the state courts and some of the individual judges of the Supreme Court of the United States have held that, even in the absence of a constitutional prohibition, the legislature of a state has no power to bargain away the taxing power of the state by granting an irrevocable exemption from taxation.88 The contrary rule, however, is now well established by the 84 As was done in Wilmington & W. R. Co. v. Reid, supra. 85 Wilmington & W. R. Co. v. Reid, supra. 86 The constitutional power to grant exemption, wholly or partially, and for fixed or indefinite periods, necessarily includes the power to exempt upon conditions or contingencies which are to happen in the future. To hold that an exemption is good for a term of years, and is not good it made to depend upon a plain contingency by which it may take effect in some years and not in others, is a distinction neither sound * in principle nor supported by authority." Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 38 L. Ed. 793. So the exemption may consist of a stipulation that no tax shall be imposed which will reduce the corporate dividends to less than a certain per cent. Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 38 L. Ed. 793. But a permanent exemption of land from taxation, or an exemption dependent upon the will of an individual, is something not to be adjudged unless the language creating such exemption clearly compels such construction." 66 Winona & St. P. Land Co. v. Minnesota, 159 U. S. 526, 40 L. Ed. 247. 87 The legislature "under the power of absolute exemption, could include in a charter contract a provision that the property of the corporation should be only liable for one-half the current rate of taxation levied by the state during any year, or it could constitutionally provide by the charter that the corporate property should be assessed at only one-half of its value. The legislative power to make such terms, especially in charters of corporations, cannot be doubted. They would be clearly included in the general power to grant absolute exemptions." Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 38 L. Ed. 793. "It has been held many times in this court that a state may make a valid contract that a corporation or its property within its territory shall be subject to a limited and specified taxation." Erie Ry. Co. v. Pennsylvania, 21 Wall. (U. S.) 492, 22 L. Ed. 595. 88 See the dissenting opinions of Chief Justice Chase, and Justices Miller and Field, in Washington Univer |