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community makes for the advantage of each. All persons are vitally concerned in the peace, order, and good government of the country in which they live.42 In the next place, although the proximate object of the tax may be the benefit or advantage of an individual, it does not always follow that the general object may not be the public welfare. For the object in conferring this benefit upon an individual may be intimately connected with the advantage of the whole people. For example, when the government assumes to make grants of land or money as bounties, or to pay pensions to retired or disabled officers, civil or military, it is true that the persons to receive the gift are most directly concerned. But the grant is made upon consideration of public services rendered or to be rendered, and is calculated and intended to promote the efficiency and fidelity of the public service by extending the hope of a reward in certain contingencies. The only question as to such laws is therefore one of wisdom and expediency; it is a political question, not a legal question. In the next place, a "public purpose" invariably means a purpose which concerns the aggregate of the people within the jurisdiction of the government which authorizes the assessment. (For example, the construction of a system of sewers, or parks, or waterworks, in a city, is a public purpose, so far as concerns the residents of the city, and therefore a legitimate object of municipal taxation. But it is not a public purpose as regards the people of the state at large. Hence the tax area must be restricted to the district to be benefited.) Taxation of the whole state for such a purpose would be clearly inadmissible. And conversely, there may be a public purpose which would serve as a basis for state taxation, but would not uphold the taxation which its municipal corporations might lawfully vote and collect. And so again, a tax cannot be imposed exclusively on any subdivision of the state to pay an indebtedness or claim which is not peculiarly the debt of such subdivision, or to raise money for any purpose not peculiarly for the benefit of such subdivision. In other words, if the tax be laid upon one of the municipal subdivisions of the state alone, the purpose must not only

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42 New York, L. E. & W. R. Co. v. Commissioners, 48 Ohio St. 249, 27 N. E. 548.

48 Cooley, Tax'n, 111.

be public, as regards the people of that municipality, but also local.**

We have said that the determination of the question whether or not a particular object is a public purpose, so as to justify taxation, belongs in the first instance to the legislature. This means that the legislature must judge of the public nature of the proposed expenditure; that their determination is presumed to be correct; that it will in any case be sufficient to authorize the persons charged with the levy and collection of the tax in proceeding with their duties; that when the question is presented to the courts they will decide it as one of law, giving to the legislative action every presumption of regularity and validity, and refusing to hold the legislative body down to any narrow or technical rule, and not interfering unless the violation of the principle involved is clear and unquestionable. “To justify the court in arresting the proceedings, and in declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable, so clear and palpable as to be perceptible by every mind at the first blush." " But if the courts can perceive, on the face of the tax law, that the purpose is a private purpose and not one which would justify the imposition of taxes, then they will give relief to any person aggrieved who brings his case properly before them. This may be done, in some cases, by enjoining the collection of the tax; in others, by allowing the recovery of taxes paid under protest, or damages for the seizure of property in pursuance of its authority.

Among the many and varied purposes for which money is usually raised by taxation, there are some which are unquestionably "public" in every proper sense of the term. And there are others, in regard to which it is not always clear whether they are so far public as to constitute a legitimate basis for taxation. We shall proceed to consider some of these cases briefly. The preservation

44 Sanborn v. Commissioners of Rice Co., 9 Minn. 273 (Gil. 258); McBean v. Chandler, 9 Heisk. 349; Wells v. City of Weston, 22 Mo. 384; Livingston Co. v. Weider, 64 Ill. 427.

45 Booth v. Town of Woodbury, 32 Conn. 118; Walker v. City of Cincinnati, 21 Ohio St. 14; Stockton & V. R. Co. v. City of Stockton, 41 Cal. 147, 173; Weismer v. Village of Douglas, 64 N. Y. 91; Sharpless v. Mayor, 21 Pa. St. 147; English v. Oliver, 28 Ark. 317.

of the public peace and the good order of the community; provision for the due and efficient administration of justice, the enforcement of civil rights, and the punishment and prevention of crime; provision for the compensation of public officers; for erecting, maintaining, repairing, and protecting the public buildings and public property in general; paying the expenses of legislation and of administering the laws; establishing and maintaining free public schools and other public institutions of learning; public charities, including the relief of paupers, the care of the indigent sick, blind, or insane, and the maintenance of public asylums, hospitals, and work-houses; the construction, repair, and improvement of public roads, including highways, turnpikes, and paved streets in cities; the enforcement of sanitary regulations, designed to protect or promote the public health; the maintenance of public parks or pleasure grounds in the cities; the payment of such public debts as were lawfully and constitutionally contracted; the enforcement or discharge of certain public obligations which, though not legally a liability of the state or municipality, are of clear moral obligation, -all these are plainly and admittedly "public" purposes, and proper to be provided for by general taxation.

But when we pass from those objects which are properly the care and duty of the government, or which are calculated to benefit the entire community, to those which work a benefit only to private persons, we cross the line and enter upon the region of unlawful exactions. For example, though it was at one time doubted whether municipal corporations could legally donate money or issue their obligations in aid of the construction of railroads, the great preponderance of authority, at present, is in favor of the constitutionality of stock subscriptions by municipalities in aid of such roads, when duly authorized by the legislature, and of taxation by them. for the payment of their bonds given to the railroad companies. These roads are regarded as improved modern highways, and although they are owned by private corporations, they are of direct benefit to the entire people of the districts through which they pass.* But on the other hand, it is well settled that municipal

46

46 Gilman v. City of Sheboygan, 2 Black (U. S.) 510; Augusta Bank v. Augusta, 49 Me. 507; Walker v. Cincinnati, 21 Ohio St. 14; Stockton & V. R. Co. v. City of Stockton, 41 Cal. 147. Compare People v. Township Board of Salem, 20 Mich. 452.

47

corporations, with or without the sanction of legislative authority, have no legal power to donate money, lend their credit, or issue their obligations, to aid in the erection or conduct of manufactories or other business enterprises owned and controlled by private persons, or as a means of securing the location of such enterprises in the particular community; taxation for such purposes is not legitimate, and such obligations, if issued, are void. Again, it is admittedly proper for the state, or its municipalities, to undertake the work of draining and reclaiming marsh and swamp lands, for the purpose of abating the nuisance which such places create, and thereby promoting the public health, and the construction of lev ees, embankments, and ditches, and in furtherance of these objects the power of taxation may be employed.48 But all such works must be public in their nature, that is, they must be for the benefit of the whole population of the district taxed, or else the raising of money by taxation cannot be justified. Thus, a tax to construct a drain, on private property, in which the public are not concerned, or of a dam which at discretion is to be devoted to private purposes. is invalid.“ ( So again, while it is not denied that the establishment of free public schools, for the instruction of children of citizens in the elementary branches of secular learning, is a proper object of taxation, yet it is generally conceded that religious instruction does not stand on the same basis, and cannot be provided for by the application of public money.50) In further illustration of this difference, it may be noticed that while public parks, since they contribute so largely to the public welfare in a variety of ways,

47 Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442; Citizens' Sav. & Loan Ass'n v. Topeka, 20 Wall. 655; Allen v. Inhabitants of Jay, 60 Me. 124; Brewer Brick Co. v. Brewer, 62 Me. 62. Bonds of a county issued to aid a company in improving the water power of a river for the purpose of propelling public grist mills, are issued to aid in constructing a "work of internal improvement," for which taxation is lawful. Blair v. Cuming Co., 111 U. S. 363, 4 Sup. Ct. 44; Burlington Tp. v. Beasly, 94 U. S. 310. Compare Osborne v. County of Adams, 106 U. S. 181, 1 Sup. Ct. 168.

48 Dingley v. Boston, 100 Mass. 544; Tide-Water Co. v. Coster, 18 N. J. Eq. 518; Egyptian Levee Co. v. Hardin, 27 Mo. 495.

49 People v. Board of Sup'rs of Saginaw Co., 26 Mich. 22; Attorney General v. Eau Claire, 37 Wis. 400.

50 Cooley, Tax'n, 118.

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.51

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.