The foregoing opinion of a court of high authority seems to us to present the points upon which this class of cases should be made to turn, with great clearLess and most unquestionable fairness

and truth.

1. That upon principle taxation should not be resorted to in aid of local interests, upon the mere ground of incidental advantage, unless the interests thensclves are under the control of the particular public authority imposing the burden or tax. Thus it will not be allowable for towns to impose taxes for the erection or maintenance of county buildings, such as court-houses and jails, upon the ground that such buildings confer some incidental benefit upon the inhabitants of the town. In strictness the authority imposing the tax should have the duty of erecting and maintaining the objects for which the taxation is imposed. For instance the state capitols, the expenses of the legislature and of the state officers, must be borne by state taxation. And we are not aware that any municipality has ever successfully attempted to maintain the right of imposing taxes upon the persons or property, where state institutions were built or maintained, in aid of such institutions, upon the ground of incidental henefit thence derived. And the same will hold true in regard to county buildings. But local taxation by the proper authority has always been held allow able upon the ground of special local VOL. XIX.-11

benefit. City improvements have been carried on, either wholly or in part, upon this ground. This question is largely discussed, in a very careful opinion, by BIGELOW, C. J, in Dorgan v. The City of Boston, 12 Allen 223, and the decisions somewhat extensively quoted in the opinion, as well as in the arguments of counsel. We may refer to Lowell v. Oliver, 8 Allen 247; State v. New Orleans Nav. Co., 11 Martin (La.) 309; Burnett v. Sacramento. 12 Cal. 76, and later cases in the same state. See also Egyptian Levee Co. v. Hardin, 27 Mo. 495; Nichols v. City of Bridgeport, 23 Conn. 189; The People v. The City of Brooklyn, 4 N. Y. 419; Guilford v. The Supervisors, &c., 13 N. Y. 143; Brewster v. The City of Syracuse, 19 N. Y. 116.

2. Taxation should only be resorted to for objects or purposes which are of a public character, and where the investment is for the advancement of some object exclusively of that character. And in addition to this the principle of taxation requires that the imposition should be made rateably, upon all the property and persons, within the range of the operation of such public interest or object. We do not claim that all this is indispensable, always, to the legal validity of taxation. The taxing power, like all other governmental powers, must be allowed a wide range of discretion, in carrying its functions into operation. But such powers are not absolutely without limit. There must be

some limit upon the legislature, as well as upon all other depositaries of power. And it seems to us not consistent with the principles of free government to hold, as some very able and sensible writers seem to do, that there is no limit upon legislative authority except what is found in our national and state constitutions. But we shall refer to this again.

3. The great question involved in all these cases seems to be how far and in what mode it is competent for the public authorities to sustain or encourage objects and enterprises of an essentially private character, by means of public taxation. And this inquiry, upon principle, seems to us to be the great question in the principal case; or at all events, it is the question underlying all the others. The court, after suggesting the radical difficulty in the question and the direction they might feel compelled to take, upon the general subject, if the question were res integra, very properly conclude, that there is a fatal difficulty in the present case; and this is, that the counties subjected to the imposition by way of subscription to the capital stock of a private corporation, are beyond this, by the same legislative provisions made or attempted to be made, responsible as guarantors of the faithful performance on the part of the corporation of the stipulations of the lease, as to rent. This seems indeed a fatal objection to the whole provision; but, in principle, it is not essentially different from making the counties members of the corporation, by compelling them to subscribe for shares, through the action of the county And if they may thus be made to assume the responsibility of members of the corporation, it seems only another step in the same direction, to compel them to stand as sureties for the undertakings of the corporation. All persons are in some sense responsible for the undertakings of all private corporations of which they become members;

court.

always to the extent of their shares, and sometimes beyond that. The legislature may always make the members of a corporation responsible for its future undertakings.

Of this

Something not entirely dissimilar to this farming out of public works to private corporations has been attempted in England, by creating a species of quasi public corporations, of a grade below that of municipalities, to have charge of some particular public interest. class are the Thames Conservancy and the Mersey Docks, and many others, which have no functions beyond the particular objects of their creation; to build an embankment along the shores of the Thames, or to create and maintain suitable docks for the harbor of Liverpool. Perhaps such public corporations, for the accomplishment of particular public objects, are less objectionable than allowing the municipalities to become members of private business corporations. And in the former case there is no attempt to resort to anything like general taxation, as there is where the counties or towns are allowed to subscribe for the stock of railways and canals and corporations for improving the navigation of large rivers.

There are differences of opinion among able jurists and learned judges in regard to there being any limitation upon the power of the legislature, either state or national, in regard to taxation, except what is found in express terms or by reasonable implication, in the letter of the constitution. Many of the declarations from the bench seem to carry the implication, that there is no such limitation except as found in the terms of the written constitution of the state, or nation, as the case may be. Of course this is not intended to exclude those limitations which result from the apportionment between the state and national governments of different interests

and subject-matters, as forming the basis of jurisdiction. It will be implied in all such general statements, that the subject-matter is of national or state cognisance, as the case may be. But beyond this condition it seems to be supposed by many, that the legislature is absolutely omnipotent, in the matter of taxation, unless restricted by the express or implied provisions of the constitution: GROVER, J., in Litchfield v. Vernon, 41 N. Y. 123; MASON, J., in People, &c., v. Lawrence, Id. 137. But we do not suppose, that any one can claim, seriously, that the power of taxation is absolutely unlimited, except by the restraints of the written constitutions of the states or the nation. The most incomprehensible exercise of the taxing power, which has ever arisen in our country, was in regard to bounties, and other expedients, resorted to by the towns, to raise their quota of soldiers for the army of the United States during the late war. There are decisions, more or less, in almost all the states, upon this subject, and all in the same direction, with occasional dissenting opinions from different judges: State v. Jackson, 2 Vroom 189, VAN DYKE, J., dissenting; Ahl v. Gleim, 52 Penna. St. 432; Weister v. Hade, Id. 474; WOODWARD, C. J., and THOMPSON, J., dissenting; Trustees of Cass v. Dillon, 16 Ohio N. S. 38; and we might refer to many more of the same class. But we do not regard these decisions as affording much aid in deciding

poses; they were never attempted to be justified upon any other ground.

But upon the general question of restrictive limitations upon the power of the legislature in the imposition of taxes, as before stated, we suppose very few will really attempt to maintain, that there are positively none except such as are found in the written constitutions. There must, of course, be the same limitations which exist in regard to legislation, that it must come fairly within the definition of the term, as being a legislative act or function. Legislation does not embrace judicial decrees, or mere despotic orders or assessments, such as a military conqueror might make. The legislative power can only exercise functions coming fairly within the import of laws. So also of taxation; it must be a tax and not a mere penalty or extortion. And it has never seemed to us, that those general constitutional provisions, found in most of the state constitutions, that taxation shall be "proportional and reasonable," Mass. Const. pt. 2, c. 1, 2 1, art. 4, really add anything, to what is fairly and necessarily implied by the most obvious import of the term "taxation." It might be somewhat difficult to raise such an issue upon the word "reasonable," as would not be overriden and broken down by the necessary discretion of the legislature. But upon the word "proportional" there is less difficulty. This provision must imply, that all persons or property taxed shall be assessed proportionally; and generally, no doubt, it implies, that all persons and property, within the district assessed, shall be included in the assessment. And the same is implied in the very word "taxation." It could not fairly be claimed, that an arbitrary decree of the legislature, that all taxes should be assessed upon persons of the greatest wealth, or the highest incomes, until the requisite amount were raised, was taxation. It would be no more

taxation than the ravages of the pirate or the highwayman. For they often pursue their vocation under some method and with some show of mercy and forbearance, not depriving their victims of all necessaries. And the fact of all assessments being made upon those most able to bear them, or that the plan adopted was really the most just and salutary, all things considered, would not make any such arbitrary exaction to become taxation. So that in fact taxation and proportional taxation are the same thing. But this will not exclude the right to impose the burden of creating or maintaining such improvements as are special benefits to particular persons or estates upon the persons or property benefited in the ratio of the benefit conferred: Hammett v. Philadelphia, 8 Am. Law Reg. N. S. 411; Emery v. San Francisco Gas Co., 28 Cal. 345; Walsh v. Mathews, 29 Id. 123; Hines v. Leavenworth, 3 Kansas 186; Howell v. The City of Buffalo, 37 N. Y. 267. But it has been held that it is not competent to enforce any portion of an assessment for improvements upon the land assessed, by proceedings against the person of the owner: Taylor v. Palmer, 31 Cal. 240; two judges dissenting.

We might pursue this inquiry much further, but we trust enough has been said to show that the legislatures in the American states are only invested with such functions and powers as are distinctively of a legislative character; and that within this there is no just ground for attempting to embrace arbitrary impositions, under the name of taxation; that the word "taxation," ex vi termini, imports only such impositions as are made rateably upon all persons or property, or both, which come fairly within the range of the supposed benefit or duty.

This division of the districts of taxation is best expressed by general and local.

And we suppose there is no more doubt or difficulty here, than in regard to the matter of the assessment being made rateably. It is clearly not competent for the legislature to impose taxes upon particular districts for general purposes, as that some particular county should pay all the expense of supporting the courts or the legislature. This has been too often decided and is too obvious to require the citation of authority. Such an assessment would become a mere arbitrary exaction, and would thereby lose its character of taxation. But there will sometimes, no doubt, arise difficulties in determining what objects are local and what not. As a general thing all objects which may exist in any portion of the state as joint stock corporations, gas companies, water companies, may be regarded as of general public interest. The same may be said of professional pursuits and other business functions. And whenever an excise or duty is imposed upon any such function or privilege, it may be directed to be paid either into the general treasury or that of the particular local jurisdiction where the function is exercised. So too of any tax required of foreign corporations doing business in another state or jurisdiction: Attorney-General v. Bay State Mining Co., 99 Mass. 148.

Finally, it must be an interest of a public character to justify the legislature in imposing taxes for its support. This seems to be conceded, in terms, on all hands, but practically evaded, by extending taxation to all those subjects which the legislature or the state might undertake and carry forward by means, either of general or local taxation. Hence it seems to be supposed, that because the nation assumes to subsidize extended lines of railway, through uncultivated regions of the public domain, by appropriating for that purpose portions of the territory, which is only what any pro