especially in the large cities, are proper objects for the expenditure of public funds, yet it is no part of the office of government to provide amusements for the people. Thus, it is held that a city has no authority to furnish an entertainment for the citizens and guests of the city, on a public holiday, at the public expense."1

EQUALITY AND UNIFORMITY IN TAXATION.

164. In many of the states, in pursuance of a general rule of justice and sound public policy, the constitutions provide that taxation shall be equal and uniform throughout the state, or throughout each municipality levying a tax.

165. This provision is intended as a guide and standard for the action of the legislature, but cannot be made a test of the validity of a tax law, in the courts, unless in cases of a very gross and palpable violation of its injunctions.

That taxation should be equal is not only a maxim of constitutional law, but also a fundamental principle of sound political economy. That the public revenues should not be raised by unjust and discriminating impositions upon a few, but that all the citizens should be called upon to contribute to the support of government as nearly as possible in proportion to their respective abilities, or in proportion to the property which they enjoy under the protection of the government, is an obvious requirement of justice. In theory, taxation should fall equally and uniformly upon all, and be levied with perfect justice. But in practice, such a result is not attainable. No tax law has ever been devised which did not involve some measure of inequality or some lack of uniformity. "Perfect equality in the assessment of taxes is unattainable. Approximation to it is all that can be had. Under any system of taxation, however wisely and carefully framed, a disproportionate share of the public burdens will be thrown on certain kinds of property, because they are visible and tangible, while others are

51 Hodges v. City of Buffalo, 2 Denio (N. Y.) 110.

53

of a nature to elude vigilance." " It rests within the exclusive power and jurisdiction of the legislature to decide, subject only to the limitations of the constitution, for what purposes revenue shall be raised by taxation, and at what times and in what manner. And it must also select the objects for taxation. In all these matters, the legislative discretion is conclusive, and it belongs to no other branch of the government to question it or set it aside." And it follows that the courts have no power, on the application of an individual, to declare a tax illegal and void, merely because it is made to appear that some other method of levying the contribution, or apportioning the individual shares of the public burden, would probably or certainly have secured a more exact justice and equality. But still, when the particular case is on its face so palpably oppressive and unequal as to furnish conclusive evidence that equality was not sought for but avoided, and that confiscation, instead of lawful taxation, was designed, then it is the right and duty of the judiciary to declare that the legislative body has overstepped the limits of its legal discretion.5*

In practice, therefore, "equality" in taxation means that, as nearly as may be practicable, all the citizens should be called upon to pay taxes, which taxes shall be strictly proportioned to the rela tive value of their taxable property. And "uniformity" in taxation means that all taxable articles, or kinds of property, of the same class, shall be taxed at the same rate. It does not mean that lands, chattels, securities, incomes, occupations, franchises, privileges, necessities, and luxuries, shall all be assessed at the same rate. Different articles may be taxed at different amounts, provided the rate is uniform on the same class everywhere, with all people, and at all times.55 Hence this constitutional requirement does not prevent the legislature from arranging the different subjects of taxation in distinct classes and making discriminations in the rate of tax imposed upon the several classes, if it be done in pursuance of a fair and reasonable system. For example, a statute imposing a tax on debts,

52 Com. v. People's Five Cents Sav. Bank, 5 Allen (Mass.) 428, 436.

53 Mayor, etc., of Athens v. Long, 54 Ga. 330.

54 Com. v. People's Five Cents Sav. Bank, 5 Allen (Mass.) 436; Dundee Mortg. Trust Inv. Co. v. School Dist., 19 Fed. 359.

55 Miller, Const. 241.

to be assessed on the actual value of debts owing from individuals, and on the nominal value of debts owing from private corporations, is not unconstitutional, since it makes corporate debts the subject of a distinct class for purposes of taxation, which the legislature has power to do.56 And when a principle of classification is thus adopted, the interference of the judicial department will not be justified, unless the classification adopted should be based upon an invidious and unreasonable distinction or difference with reference to similar kinds of property, or unless there should be discovered a lack of uniformity within the limits of the same class.5

57

Special assessments for local improvements, although they are subject to the rule of equality and uniformity in respect to the property on which they are levied, are not taxes, within the meaning of the constitutional and statutory provisions on the general subject of taxation. "The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading, or repairing of a street, to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion." 58 But the constitutional principle under consideration requires that, when the class of persons who are to bear the expense is once ascertained, the assessment shall be made among them, not arbitrarily, but according to the relative value of their property to be benefited by the improvement.59

The rule of equality and uniformity may be said generally to demand that all persons who are liable, or all property which is liable, to taxation should be called upon to bear a share of the public burdens. Yet the exemption of persons or property from taxation will not invariably or necessarily violate this rule. Especially is this the case where the exemptions were made by reason of a public benefit or other adequate consideration moving to the state from the parties exempted. And the general principle is not to be taken

56 Com. v. Lehigh Val. R. Co., 129 Pa. St. 429, 18 Atl. 406, 410.

57 Singer Manuf'g Co. v. Wright, 33 Fed. 121; People v. Henderson, 12 Colo. 369, 21 Pac. 144.

58 Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921.

59 Taylor v. Palmer, 31 Cal. 240.

so strictly as to deny the validity of the exemptions usually made for special reasons of public policy, such, for example, as the mechanic's tools, household furniture to a limited extent, the property of the very poor, and the property of religious, educational, and charitable associations. Commutation of taxes is not in general either unconstitutional or productive of inequality or a want of uniformity. For example, where a tax is levied in labor or anything else than money, and the privilege is extended to the tax payer of commuting the tax by the payment of an equivalent in money, such a provision is valid and legal, provided the privilege is offered to all who are called upon to pay the tax, without partiality or exception. So it is within the power of the legislature to enact that a railroad company shall have immunity from state and county taxation upon a quarterly payment of a certain amount in commutation, the right being reserved on the part of the state to annul the agreement at any time."1

60

A just objection to a system involving double taxation would appear to follow as a corollary from the rule requiring equality and uniformity. But this must be taken with important restrictions. It not infrequently happens that personal property will be subject to duplicate taxation. A system of indirect taxes combined with a system of general taxation by value will usually produce this result; as where corporate stock is taxed and also the corporation itself, or where the purchaser of property on credit is taxed for its value and the vendor on the debt. Now while these results are apparently opposed to the rule of equality, the courts unite in holding that taxation is not, for this reason alone, invalid.62 Neverthe less, there are certain cases where the duplication of the public burden would be so palpably unfair and partial as to be clearly incompatible with any constitution which prescribes equality and uniformity as the general rule for tax legislation. Such is the case where one person is called upon to pay two assessments upon the same property while his neighbor pays but one, e. g., where a merchant's stock in trade is taxed as such, and also, by value, as a part

60 Cooper v. Ash, 76 Ill. 11.

61 Neary v. Railroad Co., 7 Houst. 419, 9 Atl. 405.

62 Augusta Bank v. Augusta, 36 Me. 255, 259.

68

of his general estate. And the presumption is always against double taxation, and a law will not be so construed as to produce this result, unless it is required by the plain and unambiguous terms of the act, or by necessary implication from its language.

TAXATION AND REPRESENTATION.

166. It is a fundamental maxim of republican government that taxation and representation should go together. But this means that the local legislature should make the local laws, including tax laws. It does not mean that a tax law is invalid unless every person who is liable to pay a part of the tax had a vote in the election of the legislative body which imposed it.

"This principle," says Cooley, "has sometimes been appealed to as if it meant that no person could be taxed unless in the body which voted the tax he was represented by some one in whose selection he had a voice; but it never had any such meaning and never could have, without excluding from taxation a very large proportion of all the property of the state. If the privilege of voting for representatives in the government were the only or even the principal benefit received from government, there might be the highest reason in exempting the non-voting infant or alien from taxation; but this privilege to any particular individual, as compared with the protection of life, liberty, and property, is really insignificant. And so long as all persons cannot participate in government the limits of exclusion and admission must always be determined on considerations of general public policy." It is held by the courts, therefore, and notwithstanding the maxim in question, that the property of persons who have not the right to vote may be taxed, if the legislature shall so determine." And a peculiarly apposite illustration of this is found in the District of Columbia, where the citizens have no right of suffrage and where, nevertheless, congress has the right to impose taxes upon all property owners.66 At the same time, it is undoubtedly the rule

Cooley, Tax'n, 225.

64 Cooley, Tax'n, 58.

45 Wheeler v. Wall, 6 Allen (Mass.) 558; Loughborough v. Blake, 5 Wheat. 317.

Smith v. Macon, 20 Ark. 17.