of schools, and the like, are provided for by permanent laws; and not always is this done. The government is dependent from year to year on the periodical vote of supplies. And this vote will come from representatives who are newly chosen by the people, and who will be expected to reflect their views regarding the public expenditures. State taxation, therefore, is not likely to be excessive or onerous, except when the people, in times of financial ease, excitement, and inflation, have allowed the incurring of extravagant debts, the burden of which remains after the excitement has passed away.

But it is as true of the political divisions of the State as it is of the State at large, that legislative authority must be shown for every levy of taxes. The power to levy taxes by these divisions comes from the State. The State confers it, and at the same time exercises a parental supervision by circumscribing it. Indeed, on general principles, the power is circumscribed by the rule that the taxation by the local authorities can only be for local purposes.2 Neither the State nor the local body can authorize the imposition of a tax on the people of a county or town for an object in which the people of the county or town are not concerned. And by some of the State constitutions it is expressly required that the State, in creating municipal corporations, shall restrict their power of taxation over the subjects within their control. These requirements, however, impose an obligation upon the legislature which only its sense of duty can compel it to perform.3 It is evident that if the legislature fail to enact the restrictive legislation, the courts have no power to compel such action. Whether in any case a charter of incorporation could be held void on the ground that it conferred unlimited powers of taxation, is a question that could not well arise, as a charter is probably never granted which does not impose some restrictions; and where that is the case, it must be inferred that those were all the restrictions the legislature deemed important, and that therefore the constitutional duty of the legislature has been performed.1

Clark v. Davenport, 14 Iowa, 494; Burlington v. Kellar, 18 Iowa, 59; Mays . Cincinnati, 1 Ohio, N. S. 273.

Foster v. Kenosha, 12 Wis. 616.

* In Hill v. Higdon, 5 Ohio, N. S. 248, Ranney, J. says of this provision: “A failure to perform this duty may be of very serious import, but lays no foundation for judicial correction." And see Maloy v. Marietta, 11 Ohio, N. S. 638.

The constitution of Ohio requires the legislature to provide by general laws

When, however, it is said to be essential to valid taxation that there be legislative authority for every tax that is laid, it is not meant that the legislative department of the State must have passed upon the necessity and propriety of every particular tax;

for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, &c. The general law authorizing the expense of grading and paving streets to be assessed on the grounds bounding and abutting on the street, in proportion to the street front, was regarded as being passed in attempted fulfilment of the constitutional duty, and therefore valid. The chief restriction in the case was, that it did not authorize assessment in any other or different mode from what had been customary. Northern Indiana R. R. Co. v. Connelly, 10 Ohio, N. S. 165. The statute also provided that no improvement or repair of a street or highway, the cost of which was to be assessed upon the owners, should be directed without the concurrence of two thirds of the members elected to the municipal council, or unless two thirds of the owners to be charged should petition in writing therefor. In Maloy v. Marietta, 11 Ohio, N. S. 639, Peck, J. says: "This may be said to be a very imperfect protection; and, in some cases, will doubtless prove to be so; but it is calculated and designed, by the unanimity or the publicity it requires, to prevent any flagrant abuses of the power. Such is plainly its object; and we know of no rights conferred upon courts to interfere with the exercise of a legislative discretion which the constitution has delegated to the law-making power." And see Weeks v. Milwaukee, 10 Wis. 242. The constitution of Michigan requires the legislature, in providing for the incorporation of cities and villages, to "restrict their power of taxation," &c. The Detroit Metropolitan Police Law made it the duty of the Board of Police to prepare and submit to the city controller, on or before the first day of May in each year, an estimate in detail of the cost and expense of maintaining the police department, and the Common Council was required to raise the same by general tax. These provisions, it was claimed, were in conflict with the constitution, because no limit was fixed by them to the estimates that might be made. In People v. Mahaney, 13 Mich. 498, the court say: "Whether this provision of the constitution can be regarded as mandatory in a sense that would make all charters of municipal corporations and acts relating thereto which are wanting in this limitation invalid, we do not feel called upon to decide in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the nature of the case it was impossible to do more than to make it the duty of the legislature to set some bounds to a power so liable to abuse. A provision which, like the one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined the power to a certain percentage upon taxable property, or to a sum proportioned to the number of inhabitants in the city. Whether the restriction fixed upon would as effectually guard the citizen against abuse as any other which might have been established was a question for the legislative department of the government, and does not concern us on this inquiry."

but those who assume to seize the property of the citizen for the satisfaction of the tax must be able to show that that particular tax is authorized, either by general or special law. The power inherent in the government to tax lies dormant until a constitutional law has been passed calling it into action, and is then vitalized only to the extent provided by the law. Those, therefore, who act under such law should be careful to keep within its limits, lest they remove from their acts the shield of its protection. While we do not propose to enter upon any attempt to point out the various cases in which a failure to obey strictly the requirements of the law will render the proceedings void, and in regard to which a diversity of decision would be met with, we think we shall be safe in saying that, in cases of this description, which propose to dispossess the citizen of his property against his will, not only will any excess of taxation beyond what the law allows render the proceedings void, but any failure to comply with such requirements of the laws as are made for the protection of the owner's interest will also render them void.

There are several cases in which taxes have been levied but slightly in excess of legislative power, in which it has been urged in defence of the proceedings that the law ought not to take notice of such unimportant matters; but an excess of jurisdiction is never unimportant. In one case in Maine the excess was eighty-seven cents only in a tax of $ 225.75, but it was held sufficient to render the proceedings void. We quote from Mellen, Ch. J., delivering the opinion of the court: "It is contended that the sum of eightyseven cents is such a trifle as to fall within the range of the maxim de minimis, &c.; but if not, that still this small excess does not vitiate the assessment. The maxim is so vague in itself as to form a very unsafe ground of proceeding or judging; and it may be almost as difficult to apply it as a rule in pecuniary concerns as to the interest which a witness has in the event of a cause; and in such case it cannot apply. Any interest excludes him. The assessment was therefore unauthorized and void. If the line which the legislature has established be once passed, we know of no boundary to the discretion of the assessors." 1 The same view has been taken by the Supreme Court of Michigan, by which the

1 Huse v. Merriam, 2 Greenl. 375. See Joyner v. School District, 3 Cush. 567; Kemper v. McClelland, 19 Ohio, 324; School District v. Merrills, 12 Conn. 437; Elwell v. Shaw, 1 Greenl. 335.

opinion is expressed that the maxim de minimis lex non curat should be applied with great caution to proceedings of this character, and that the excess could not be held unimportant and overlooked where, as in that case, each dollar of legal tax was perceptibly increased thereby. Perhaps, however, a slight excess, not the result of intention, but of erroneous calculations, may be overlooked, in view of the great difficulty in making all such calculations mathematically correct, and the consequent impolicy of requiring entire freedom from all errors.2

Wherever a tax is invalid because of excess of authority, or because the requisites in tax proceedings which the law has provided for the protection of the tax-payer are not complied with, any sale of property based upon it will be void also. The owner is not deprived of his property by "the law of the land," if it is taken to satisfy an illegal tax. And if property is sold for the satisfaction of several taxes, any one of which is unauthorized, or for any reason illegal, the sale is altogether void.3

1 Case v. Dean, 16 Mich. 12.

This was the view taken by the Supreme Court of Wisconsin in Kelley v. Corson, 8 Wis. 182, where an excess of $8.61 in a tax of $6,654.57 was held not to be fatal; it appearing not to be the result of intention, and the court thinking that an accidental error no greater than this ought to be disregarded. This has been repeatedly held. Elwell v. Shaw, 1 Greenl. 335; Lacy v. Davis, 4 Mich. 140; Bangs v. Snow, 1 Mass. 188; Thurston v. Little, 3 Mass. 429; Dillingham v. Snow, 5 Mass. 547; Stetson v. Kempton, 13 Mass. 283; Libby v. Burnham, 15 Mass. 144; Hayden v. Foster, 13 Pick. 492; Torrey v. Millbury, 21 Pick. 70; Alvord v. Collin, 20 Pick. 418; Drew v. Davis, 10 Vt. 506; Doe v. McQuilkin, 8 Blackf. 335; Kemper v. McClelland, 19 Ohio, 324. This is upon the ground that the sale being based upon both the legal and the illegal tax, it is manifestly impossible afterwards to make the distinction, so that the act shall be partly a trespass and partly innocent. But when a party asks relief in equity before a sale against the collection of taxes a part of which are legal, he will be required first to pay that part, or at least to so distinguish them from the others that process of injunction can be so framed as to leave the legal taxes to be enforced; and failing in this, his bill will be dismissed. Conway v. Waverley, 15 Mich. 257; Palmer v. Napoleon, 16 Mich. 176; Hersey v. Supervisors of Milwaukee, 16 Wis. 182; Bond v. Kenosha, 17 Wis. 288.

As to the character and extent of the irregularities which should defeat the proceedings for the collection of taxes, we could not undertake to speak here. We think the statement in the text, that a failure to comply with any such requirements of the law as are made for the protection of the owner's interest will prove fatal to a tax sale, will be found abundantly sustained by the authorities, while many of the cases go still further in making irregularities fatal. It appears to us that where the requirement of the law which has failed of observance was

one which had regard simply to the due and orderly conduct of the proceedings, or to the protection of the public interest, as against the officer, so that to the taxpayer it is immaterial whether it was complied with or not, a failure to comply ought not to be recognized as a foundation for complaint by him. But those safeguards which the legislature has thrown around the estates of citizens, to protect them against unequal, unjust, and extortionate taxation, the courts are not at liberty to do away with by declaring them non-essential. To hold the requirement of the law in regard to them directory only, and not mandatory, is in effect to exercise a dispensing power over the laws. Mr. Blackwell, in his treatise on tax titles, has collected the cases on this subject industriously, and perhaps we shall be pardoned for saying also with a perceptible leaning against that species of conveyance. As illustrations how far the courts will go, in some cases, to sustain irregular taxation, where officers have acted in good faith, reference is made to Kelley v. Corson, 11 Wis. 1; Hersey v. Supervisors of Milwaukee, 16 Wis. 185. See also Mills v. Gleason, 11 Wis. 497, where the court endeavors to lay down a general rule as to the illegalities which should render a tax roll invalid.