requiring uniformity of taxation, which was separately submitted to the people by the legislature, and rejected by a large adverse vote. Several propositions relating to taxation were submitted to the Convention of 1894, but no provision on this subject was adopted, except a further modification of the section relating to municipal indebtedness.

The absence of constitutional restraints has left the legislature free to act according to its own discretion, except as limited by provisions relating to the fundamental rights of citizens, but subject to judicial review within somewhat narrow limits. The decisions cited in this note show the scope and variety of tax legislation, and point out the principles of construction applicable to this branch of legislative power. It will not be profitable to cite all the cases bearing incidentally on taxation; many of them refer to tax questions for the purpose of illustrating the discussion of other subjects, and also by way of repetition of well-established principles without announcing any new doctrine. Many decisions involve only procedure incident to taxation, or the interpretation and application of statutory provisions, or causes of action and rights growing out of tax proceedings.

In general. "The taxing power is one of the inherent powers of government and belongs appropriately to the legislative department. . . Within the limits of legitimate taxation, the legislative discretion is utterly uncontrollable, as it is indefinable in its objects, purposes, uses, and extent. . . . So far as the tax is general or imposed upon all, or all of a class of persons within prescribed limits or districts upon some common principle or rule, and the tax is for some public purpose, there is no limit to the power of the legislature to authorize taxation, and no remedy or mode of correction for unjust laws involving such taxation but through the ballot box." Clarke v. Rochester (1857) 24 Barb. 446, (1866) 34 N. Y. 355; Genet v. Brooklyn (1885) 99 N. Y. 301, I N. E. 777; State v. Kings County (1891) 125 N. Y. 312, 26 N. E. 272.

"Taxation is indisputably a legislative power. The Constitution of this state will be searched in vain for any clause which contains any restriction or limitation on the taxing power of the legislature.” The legislature can, "under the power to levy taxes, apportion the public burthens among all the taxpaying citizens of the state, or among those of a particular section or political division." A claim against a town, not recoverable by action, may be validated by the legislature, and a tax may be imposed on the town for its payment. Guilford v. Chenango County (1855) 13 N. Y. 143.

The taxing power was again asserted in Brewster v. Syracuse (1859) 19 N. Y. 116, sustaining an act authorizing the city of Syracuse to levy a special tax for the relief of a sewer contractor in addition to the contract price.

In People ex rel. Post v. Brooklyn (1849) 6 Barb. 209, the court, after remarking that it is by no means easy to trace the dividing line between the power to take private property by eminent domain and to take it by taxation, that the powers are somewhat blended, that each is an exercise of the sovereign power over individual property, and that both are requisitions for the public use, say that "taxes are defined to be burdens or charges imposed upon persons or property to raise money for public purposes;" that "the right to impose a tax is inherent in every government, as essential to its existence. It operates on all the persons and property belonging to the state. It is not conferred upon the legislature by any specific clause of the Constitution... The legislature has not the constitutional authority to exact from a single citizen, or a single town or county or city, the means of defraying the entire expenses of the state. . . . Legitimate taxation is limited to the imposing of burdens or charges for a public purpose, equally upon the persons or property within a district known and recognized by law as possessing a local sovereignty for certain purposes, as a state, county, city, town, village, etc.”

Action to collect tax.-The legislature has power to provide for the collection of an unpaid tax by action. New York v. Colgate (1854) 12 N. Y. 140, also Litchfield v. McComber (1864) 42 Barb. 288, where it is said that “a tax assessed by authority of law for a general or local purpose creates a duty and an obligation by the taxpayer to make the payment. This obligation results from the nature of the relation between the government and the constituent. The obligations are mutual. The former owes security and protection, while the latter owes services and contributions of money to the extent of his ability."

Apportionment. “In a representative democracy, the right of tax

ing the citizen is an inseparable incident of popular sovereignty; and this power is committed to the government to be exercised, and not to be alienated. . . In exercising the power of apportionment, it has been usual with us, as with other governments, to relieve certain classes of persons from the pressure of burdens which, for special reasons, would be as to them peculiarly onerous; and this has been done as an incident in the adjustment of general statutes, and on such terms as seemed good to the lawmaking power for the time being; but it has never been our policy to enter into irrevocable contracts securing to individuals or classes, as against the state, special privileges and immunities not granted to other citizens, and opposed to the theory of the Constitution." People ex rel. Cunningham v. Roper (1866) 35 N. Y. 629, sustaining an act abrogating certain exemptions from taxation based on militia service. Astor v. New York (1874) 5 Jones & S. 539.

Taxation takes property for public use; “and the taxpayer receives, or is supposed to receive, his just compensation in the protection which government affords to his life, liberty, and property, and in the increase of the value of his possessions by the use to which the government applies the money raised by the tax. .. Taxation exacts money or services from individuals as and for their respective shares of contribution to any public burthen. Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment. . . . It must be conceded that the power of taxation and of apportioning taxation, or of assigning to each individual his share of the burthen, is vested exclusively in the legislature unless this power is limited or restrained by some constitutional provision. The power of taxing and the power of apportioning taxation are identical and inseparable. Taxes cannot be laid without apportionment; and the power of apportionment is therefore unlimited, unless it be restrained as a part of the power of taxation." The Constitution contains no such limitation or restraint. It has not been "ordained that taxation shall be general so as to embrace all persons or all taxable persons within the state, or within any district, or territorial division of the state; nor that it shall or shall not be numerically equal, as in the case of a capitation tax; nor that it must be in the ratio of the value of each man's land, or all his goods, or of both combined; nor that a tax 'must be coextensive with the district or upon all the property in a district which has the character of and is known to the law as a local sovereignty.'" Nor has it been "ordained or forbidden that a tax shall be apportioned according to the benefit which

each taxpayer is supposed to receive from the object on which the tax is expended. . . . Taxation is sometimes regulated by one of these principles, and sometimes by another; and very often it has been apportioned without reference to locality or to the taxpayer's ability to contribute, or to any proportion between the burthen and the benefit." People ex rel. Griffin v. Brooklyn (1851) 4 N. Y. 419, 55 Am. Dec. 266, followed in People ex rel. Crowell v. Lawrence (1869) 41 N. Y. 137.

It is a general proposition "that the taxpayer is supposed to receive just compensation in the benefits conferred by government and in the proper application of the tax, and that, in the exercise of the taxing power, the legislature ought, as nearly as practicable, to apportion the tax according to the benefit which each taxpayer is supposed to receive from the object upon which the tax is expended. But the power of apportionment is included in the power to impose taxes, and is vested in the legislature; and in the absence of any constitutional restraint the exercise by it of such power of apportionment cannot be reviewed by the courts. . . . The people have been content to leave to the wisdom and justice of the legislature, unrestrained by specific regulations, the subject of determining how the public burdens shall be apportioned among them. . . . To undertake to review the action of the legislature in this respect, and to enforce by judicial power absolute equality of taxation, or to declare a law unconstitutional on the ground that a locality is taxed for what might seem to the court more than its just proportion of an expenditure for a public purpose would be a usurpation of the province of the legislature." Gordon v. Cornes (1872) 47 N. Y. 608 (Brockport Normal School); Wilson v. New York (1855) 4 E. D. Smith, 675.

"It is not competent for the legislature, in the exercise of the power of taxation, to charge the property of one citizen by a course of proceeding unknown to the common law, and differing from that by which the property of all other citizens is taxed or charged." Granger v. Buffalo (1879) 6 Abb. N. C. 238.

The legislature has power to exempt a corporation from taxation above a specified valuation. People ex rel. Troy Union R. Co. v. Carter (1889) 52 Hun, 458, 5 N. Y. Supp. 507, affirmed in (1889) 117 N. Y. 625, 22 N. E. 1128; Hewitt v. New York & O. M. R. Co. (1875) 12 Blatchf. 452, Fed. Cas. No. 6,443.

Discrimination.-A street, about half of which was occupied by railroads, was paved under a statute which provided that, in estimating the benefit from paving upon such a street, a company owning a

railroad should be estimated to be benefited in such proportion as its tracks and usage of said street might bear to the whole width of the street, and be assessed proportionately. Replying to the argument that the provision arbitrarily discriminates against a particular class of property, and fixes an arbitrary measure of its assessment without regard to the actual benefit received, the court reaffirm "the complete and well-nigh absolute authority of the legislature over the subject of taxation," and say that corporations are creatures of the legislature, and are subject to its control, and that it was competent for the legislature to lay upon them burdens in addition to those prescribed by their charters. New York, L. E. & W. R. Co. v. Dunkirk (1892) 65 Hun, 494, 20 N. Y. Supp. 596.

The subject of discrimination is considered in Re Pell (1902) 171 N. Y. 48, 57 L. R. A. 540, 89 Am. St. Rep. 791, 63 N. E. 789, cited below under the head of "Transfer Tax," and a provision of the amended transfer tax law (1899) was condemned because it discriminated in favor of the owners of certain estates.

Double taxation.-"In the consideration of the effect and meaning of laws imposing taxes, it would undoubtedly be the duty of the court to so construe them, if possible, as to avoid unequal and double taxation; but in determining the question of legislative power we are precluded from entertaining such considerations, and must be governed by the constitutional authority conferred upon the legislative body. In performing the duty of levying taxes for the support of government, state legislatures may, in the exercise of their undoubted power, impose double taxes or lay burdens beyond the financial capacity of the classes taxed, and however impolitic or unwise such a course would be, the courts have no right to interfere with the exercise of the legislative discretion. . . . Such questions properly belong to the legislative branch of the government, whose exclusive duty it is to apportion and impose the taxes required for the use of the government." People v. Home Ins. Co. (1883) 92 N. Y. 328, affirmed in (1889) 134 U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593; People v. Delaware & H. Canal Co. (1889) 54 Hun, 598, 7 N. Y. Supp. 890, affirmed in (1890) 121 N. Y. 666, 24 N. E. 1093, in which the court considered a question relating to unequal taxation. While the legislature may constitutionally impose double taxation, its purpose to do so can never be inferred, but must plainly appear. The bank is, in some sense, a trustee of the depositors, and takes their money and invests it and pays them the net interest which it earns; and it cannot be supposed that there is any system of laws under which taxation can, at the same time, be imposed upon a