The people of a state therefore give to their government a right of taxing themselves and their property, and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legis lator, and on the influence of the constituents over their representative, to guard them against its abuse.""

But it is not consonant with the constitutional idea of a tax that it should be exacted from individuals in an arbitrary or discrimi nating manner. The idea of taxation implies equality of burdens, and a regular distribution of the expenses of government among those persons, or those classes of property, which are rightly subject to the burden of them. The requirement of apportionment is absolutely essential in any exercise of the power to tax. There can be no such thing as valid taxation when the burden is laid without rule, e'ther in respect to the subjects of it or to the extent to which each must contribute.

Again, the exaction of money from individuals under the power of taxation, and the appropriation of private property for public use by virtue of the power of eminent domain, should not be confused. In paying taxes, the citizen contributes his just and ascertained share to the expenses of the government under which he lives. But when his property is taken under the power of eminent domain, he is compelled to surrender to the public something above and beyond his due proportion for the public benefit. The matter is special. The particular estate is taken because the government has special need for it. It is in the nature of a compulsory sale to the state. Hence arises the justice and necessity of a constitutional provision for compensation to the owner.* Furthermore, taxes are not debts in the ordinary sense of that word. The state

2 McCulloch v. Maryland, 4 Wheat. 316, 428. And see Pullen v. Commissioners, 66 N. C. 361.

8 Black, Tax Titles, § 84; Henry v. Town of Chester, 15 Vt. 460; TideWater Co. v. Coster, 18 N. J. Eq. 518; Stuart v. Palmer, 74 N. Y. 183; City of Lexington v. McQuillan's Heirs, 9 Dana (Ky.) 513. A state may make the ownership of property subject to taxation relate to any day or period of the year which it may think proper. Shotwell v. Moore, 129 U. S. 590, 9 Sup. Ct. 362.

Booth v. Town of Woodbury, 32 Conn. 130; People v. Mayor, etc., of Brooklyn, 4 N. Y. 419.

may distrain and sell property for the payment of a tax, if not paid when demanded, without first obtaining a judgment, and as between it and creditors of the person owing the tax, the state is entitled to a preference. The claim of the government upon the citi zen for the payment of taxes is paramount to all other claims and liens against his property."

The power to tax is exclusively a legislative function, and cannot be exercised except in pursuance of legislative authority. A court has no taxing powers, and can impart none to the authori ties of a municipal corporation. It has no jurisdiction to coerce the levy of a tax, except where the law has made it the clear and absolute duty of the proper authorities of the municipality to levy such tax.

In respect to the kind of tax which shall be laid, and also in regard to the objects which shall be placed under its burdens, the legislature, as the representative of the sovereign people, must exercise its judgment and discretion, having in view the needs and conditions of the country. But the power to tax is of the broadest extent. "It is a power of-unlimited force and most searching extent. It embraces every person and every object of property within the confines of the nation. It extends to every trade, profession, and employment. It covers every estate, interest, and evidence of debt. It has to do with the food we eat, it concerns itself with our labor and our amusements, and sometimes counts the windows of our houses. It imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or forfeiture of property." But in this country the taxing power is subject to certain positive limitations, within which its exercise must be confined, in order to answer the requirement of legality. "Great as is the power of any sovereignty to levy and collect taxes from its citizens, it is not in a constitutional country without limitations which are of a very distinct and positive nature, and exist whether declared or not declared in the written constitution; but some of them it is not uncommon to specify, either out of abundant caution, or to keep them fresh in the minds of those who administer the gov

Jack v. Weiennett, 115 Ill. 105, 3 N. E. 445.

Board of Com'rs of Grand Co. v. King, 14 C. C. A. 421, 67 Fed. 202. 1 Black, Tax Titles, § 4.

ernment. Some others, in this country, spring from the peculiar form of the government and the relation of the states to the common authority. Still others are expressly imposed, either by the state constitution or by that of the Union."

INDEPENDENCE OF FEDERAL AND STATE GOVERNMENTS. 158. The necessary independence of the federal and state governments imposes a limitation upon the taxing power of each. Neither can so exercise its own power of taxation as to curtail the rightful powers of the other, or interfere with the free discharge of its constitutional functions, or obstruct, embarrass, or nullify its legitimate operations, or destroy the means or agencies employed by it in the exercise of those powers and functions.

This limitation upon the taxing power is not expressed in the constitutions, but is to be implied from the nature of our system of government. No political community can in general lay assessments upon any subjects of taxation not within its territorial jurisdiction. But this axiom of law has a special and highly important application in this country, under our peculiar frame of government, which apportions the sovereign authority between the commonwealth and the nation, and gives to each, over certain subjects, an exclusive jurisdiction. Whatever pertains to this exclusive jurisdiction in either is eliminated from the taxing power of the other as completely as if it were beyond its territorial limits. In a leading case, the following rules were laid down as incontrovertible propositions: “That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, in respect to those very measures, is declared to be supreme over that which exerts the control." As a corollary from this rule it follows that the several states have no constitutional power to lay any tax upon the instruments, means, or agencies provided or selected by the United States to enable it to carry into execution its legitimate 8 Cooley, Tax'n, 54. • McCulloch v. Maryland, 4 Wheat. 316, 431.

powers and functions. This principle was applied in the celebrated case of McCulloch v. Maryland,10 which involved the constitutionality of a law of Maryland imposing a tax upon the circulation of the Bank of the United States. And the same doctrine was invoked in an interesting case in California, which further illustrates the rule here in question. It appeared that the Western Union Telegraph Company owned and operated lines by authority of the federal gov ernment along the military and post roads of the United States, and over, under, and across the navigable waters thereof, and that it used its lines in the transmission of messages from state to state and to foreign countries, and that it was likewise engaged in the transmission over its wires of messages for, from, and between the several departments of the federal government, giving such messages priority over all other business, and sending them at rates annually fixed by the postmaster general. On this state of facts it was considered that the company was one of the means or instruments employed by the United States government for carrying into effect its sovereign powers, and consequently, within the rule in McCulloch v. Maryland, a state tax upon its franchise, in addition to the tax which, in common with others, it paid on its property, was beyond the power of the state and was void."

12

In pursuance of the same general principle, it is held that the fiscal agents of the United States, the army and navy, the federal judicature, the public ships, the national institutions and property, and imported goods in the public warehouses, are all exempt from state taxation.1 No state can impose taxes on property belonging to the United States, no matter how it was acquired or for what purpose it is used or held. Thus, land lying within the borders of a state, but which still constitutes a portion of the public domain, and the legal and beneficial title to which remains in the United States, is not subject to any species of state taxation. Any assessment of taxes upon such land, as well as any proceedings for the collection of such taxes, are null and void, and can in no way

10 4 Wheat. 316.

18

11 City and County of San Francisco v. W. U. Tel. Co., 96 Cal. 140, 31 Pac. 10.

12 Howell v. State, 3 Gill (Md.) 14.

18 People v. U. S., 93 Ill. 30.

affect the interests of the government.14

Moreover, the loans,

money, and securities of the general government are beyond the

taxing powers of the states.

It is provided by statute that "all

stocks, bonds, treasury notes, and other obligations of the United States shall be exempt from taxation by or under state or municipal or local authority." 15 Even without any act of congress this rule would apply. On general principles of law, no state could tax the bonds, notes, or certificates of indebtedness of the national government, nor the notes of the national banks.1 "The authority to borrow money on the credit of the United States is among the enumerated powers expressly vested by the constitution in the national government, and as, within the sphere of those powers, that government has been made supreme, the states cannot, by taxing its notes or other obligations, impair its ability to raise money for necessary governmental purposes." 17 Congress has constitutional power to declare that bonds issued by the District of Columbia, to be paid in part by taxation of property within the District and in part by appropriations from the revenues of the United States, shall be exempt from all taxation by state or

14 McGoon v. Scales, 9 Wall. 23; Van Brocklin v. Tennessee, 117 U. S. 151, 6 Sup. Ct. 670; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341; People v. U. S., 93 Ill. 30; Neiswanger v. Gwynne, 13 Ohio, 74; Dixon v. Porter, 23 Miss. 84; Hall v. Dowling, 18 Cal. 619; Quivey v. Lawrence, 1 Idaho, N. S. 313; Wright v. Cradlebaugh, 3 Nev. 342; Doe v. Hearick, 14 Ind. 242; Bonner v. Phillips, 77 Ala. 427; Wisconsin Cent. R. Co. v. Taylor Co., 52 Wis. 37, 8 N. W. 833; People v. Morrison, 22 Cal. 73; Ivinson v. Hance, 1 Wyo. 270.

15 Rev. St. U. S. § 3701.

16 Weston v. City Council of Charleston, 2 Pet. 449; Bank Tax Case, 2 Wall. 200; Horne v. Green, 52 Miss. 452; Ogden v. Walker, 59 Ind. 460; Campbell v. City of Centerville, 69 Iowa, 439, 29 N. W. 596; Dixon Co. v. Halstead, 23 Neb. 697, 37 N. W. 621. But where taxable personal property is converted into United States securities for the express purpose of avoiding taxation, a court of equity will not interfere to enjoin the collection of a tax assessed on such securities. Ogden v. Walker, 59 Ind. 460. A state may tax the stocks, bonds, or other certificates of public debt issued by another state, or by its municipal corporations, when the same are owned by residents of the taxing state. Appeal Tax Court of Baltimore City v. Patterson, 50 Md. 354. 17 Shotwell v. Moore, 45 Ohio St. 632, 16 N. E. 470.