tween party and party, either express or implied. They are acts of the government, binding upon the inhabitants, to the making or enforcing of which their personal consent individually is not required. Therefore taxes are not the subject of set-off, under Rev. St. Mass. c. 96, § 2, providing that no demand shall be a set-off unless it is founded upon a judgment or upon a contract. Peirce v. City of Boston, 44 Mass. (3 Metc.) 520, 521. See, also, Bonaparte v. State, 63 Md. 465, 470. As liability. See "Liability." License or license fee. A license is not a "tax" in the constitu tional sense of that word. City of East St. Louis v. Wehrung, 46 Ill. 392, 393 (citing People v. Thurber, 13 Ill. [3 Peck] 554); United States Distilling Co. v. City of Chicago, 112 Ill. 19, 21; Braun v. City of Chicago, 110 Ill. 183, 186; City of Santa Barbara v. Stearns, 51 Cal. 499, 501; People v. Naglee, 1 Cal. 232, 252, 52 Am. Dec. 312. The term "taxation," as used in the doctrine that the Legislature cannot authorize the power of taxation under the pretense of sanitary regulations, or other exercise of the police power of the state, in the interests of the public health and safety, means the providing of revenue for the ordinary expenses of state or municipal government. But it does not follow, therefore, that any ordinance will be held void simply because it provides for a fund to be derived from license fees, and such a measure will not be held to come within the doctrine above mentioned, and will be upheld by the courts whenever it appears to have been designed to promote the welfare of the public, and the revenue derived therefrom is not disproportionate to the cost of its enforcement and the regulation of the business to which it applies. Littlefield v. State, 60 N. W. 724, 725, 42 Neb. 223, 28 L. R. A. 588, 47 Am. St. Rep. 697. The word "taxation," in its ordinary sense, means a charge for the support of the state, or some of its subordinate municipal agencies, and does not refer to a charge merely incidental to the exercise of the police power. City of Oil City v. Oil City Trust Co., 25 Atl. 124, 125, 151 Pa. 454. TAX-TAXATION lect taxes for corporate purposes, includes the power of a municipality to impose by way of license fees a tax on business and avocations, though strictly speaking the imposition of a license for a trade or calling by a municipality is referable to the police power possessed by such bodies. State v. City of Columbia, 6 S. C. (6 Rich.) 1, 4. "License" and "tax" are frequently and properly employed as convertible terms, though not precisely synonymous; for a license fee or exaction, whatever name or designation is given it, when plainly imposed for the sole or main purpose of revenue, is in effect a tax. Parish of East Felicinia v. Levy, 4 South. 309, 40 La. Ann. 332. that it should be exempt from any state, The charter of a corporation provided county, or municipal tax or license for transacting business. Held, that the words "tax the company was exempt from payment of all or license" were not used synonymously, and taxes, and not merely from paying a license for carrying on its business. City of Bowling Green v. Kentucky Masonic Mut. Life Ins. Co., 5 Ky. Law Rep. 697. The "power to tax" means the power to take from the citizen a sum for the support of the government, whether that be national, state, or municipal. A power to license is not a power to tax. Hoefling v. City of San Antonio, 20 S. W. 85, 87, 85 Tex. 228, 16 L. R. A. 608. The tax imposed by Act March 24, 1881, imposing on every firm, person, or association of persons owning or running any palace, sleeping, or dining room cars not owned by the railroad company, an annual tax, is not a tax upon persons, which under the Constitution of Texas must be uniform; nor is it a tax upon property, which under the Constitution of Texas must be taxed in proportion to its value. Pullman Palace Car Co. v. State, 64 Tex, 274, 275, 53 Am. Rep. 758. As used in a contract by the owner with the pledgee of a stallion to refund to him the taxes paid by him upon the stallion up on its return to the owner, "taxes" does not include a license paid to keep the horse; the word "taxes" referring to taxes on the horse itself, and not upon the use of the horse. Anderson v. Doll, 27 Cal. 607, 611. See, also, Allis v. Jefferson County, 34 Ark. 307. Any pecuniary charge imposed by the government for the privilege of residence or holding property, or of exercising a calling or The word "tax," in Const. 1849, art. 6, engaging in a profession or business, is a tax; and hence, where a state contracted that the $ 6, providing that the district courts shall coupons attached to its bonds shall be receiv- have original jurisdiction in all cases at able for all taxes, the contract embraces li- law involving the illegality of any tax, and in cense taxes. Harvey v. Virginia (U. S.) 20 Code Civ. Proc. 1872, § 838, providing that parties to an action in a justice's court cannot give evidence upon any question which involves the legality of any tax, is used in its large sense, as being a charge or Fed. 411, 413. "Taxation," as used in Const. art. 9, § 8, authorizing municipalities to assess and col burden imposed upon persons, property, or to give theatrical exhibitions for a specified business to raise money for public purposes, time, together with a fee of one dollar for and therefore includes a license fee or charge the officer issuing the license, is not a tax, for the transaction of any business. City within the meaning of Const. art. 12, § 5, of Santa Barbara v. Stearns, 51 Cal. 499, requiring the taxing of all property by a 501. uniform rule. Baker v. City of Cincinnati, 11 Ohio St. 534, 540. Same-Corporation fee. The annual license fee imposed in New Jersey on corporations is not a tax, and therefore is not provable as such under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]. In re Danville Rolling Mill Co. (U. S.) 121 Fed. 432. The word "taxes," as used in Const. art. 11, § 12, providing that the Legislature shall have no power to impose taxes on counties, cities, towns, etc., for county, city, town, or municipal purposes, includes license fees imposed mainly, if not solely, for the purpose of revenue. It is clear that the section is not limited to taxes upon property; for by its language the Legislature is prohibited from imposing taxes upon the inhabitants of municipal corporations, as well as upon other property, for municipal purposes, and a license tax imposed and re quired to be paid into the county treasury for the use of the county general fund is outside of the power of the Legislature to impose. People v. Martin, 60 Cal. 153, 155. "Tax," within the meaning of the stat-ged is merely used as a mode of computing ute requiring that all taxes imposed by the the amount to be paid for the exercise of the privilege. city of New Orleans shall bear 10 per cent. People v. Thurber, 13 III. (3 interest, etc., is generic, and includes a li- Peck) 554, 557. cense tax levied for revenue. City of New Orleans v. Rhenish Westphalian Lloyds, 31 La. Ann. 781, 785. A tax carries with it the idea of imposition and compulsion. A statute imposing a duty on goods sold at public outcry by licensed auctioneers, and which duty is to be paid by the vendor of the goods, is not a tax, because it is purely optional with the vendor whether he will or will not avail himself of the advantages offered by the state upon the terms it proposes. If he do avail himself thereof, he thereby agrees to pay the charges imposed. Wintz v. Girardey, 31 La. Ann. 381, 383. The charter of a corporation exempting its stock from taxation did not exempt it from the payment of a license "tax." City of New Orleans v. New Orleans Canal & Banking Co., 32 La. Ann. 104, 105. A license imposed by a city ordinance Rev. St. c. 24, §§ 22, 23, requiring an agent of a foreign insurance company to take out a license, is not a tax on property, but is a burden imposed on the agent for the right of exercising a franchise or privilege, and which the Legislature would have the right to withhold or inhibit altogether; and the amount of premiums char Same-Dog tax. The tax laid on dogs is not ascertained by value, but specifically, and therefore is to be regarded as a license, rather than a tax, and hence does not come within the provision of a statute exempting personal property of a railway company from taxation. Hendrie v. Kalthoff, 12 N. W. 191, 48 Mich. 306. The word "tax," means a burden, charge, or imposition placed or set on persons or property for public use; and hence, since dogs cannot be said to be property, a statute imposing a tax of $1 per annum on dogs does not use the term in its common acceptation, but rather in the sense of license, and is therefore not within Const. 1876, art. 8, § 1, providing that all property shall be taxed in proportion to its valuethe word "tax," as used in the Constitu tion, being used according to its usual acceptation as defined. Ex parte Cooper, 3 Tex. App. 489, 493, 30 Am. Rep. 152; Cole v. on all persons keeping a meat shop or stand such dealers for the additional labor of of- In Van Horn v. People, 46 Mich. 183, 9 ficers and expense thereby imposed. Ash v. N. W. 246, 41 Am. Rep. 159, the question People, 11 Mich. 347, 352, 83 Am. Dec. 740. was considered as to whether a per capita The word "tax," in Const. art. 10, § 3, providing that taxes shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax, includes a license fee imposed on the keepers of meat shops. City of St. Louis v. Spiegel, 75 Mo. 145, 146. The imposition of a license fee, by an ordinance exacting a charge for a license tax on dogs is a tax. Graves, J., in delivering the opinion says: "The fundamental proposition is that the exaction attempted by the statute is a tax, and, not being laid assessed according to the cash value of the according to any mode of uniformity, nor property, the imposition is unconstitutional. It is also suggested that dogs are included in the actual mass of property taxed under the general law, and that it is not competent TAX-TAXATION 6885 TAX-TAXATION to select one species of property and sub-ication of such word. Pleuler v. State, 10 ject it to double taxation. It is unnecessary N. W. 481, 486, 11 Neb. 547. to point out the inaccuracies of this reasoning. The foundation on which it rests is fallacious. The supposition that the statute is an emanation from the taxing power is a mistake. The act is an execution of the police power, and no reason is perceived for denying its validity." The same general doctrine has been declared in Blair v. Forehand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am. Rep. 94; Tenney v. Lenz, 16 Wis. 566; Mitchell v. Williams, 27 Ind. 62; Holst v. Roe, 39 Ohio St. 340, 342, 345, 48 Am. Rep. 459. Same-Liquor license. The word "tax" in its proper sense does not include a license issued for retailing liquor. Burch v. City of Savannah, 42 Ga. 596, 598 (cited in State v. Hardy, 7 Neb. 377, 380). While the burden imposed by the Dow law (Act March 3, 1888) upon the traffic in intoxicating liquors is in some of the sections of the law termed an "assessment," the word is used as synonymous with "tax." State v. Rouch, 25 N. E. 59, 63, 47 Ohio St. 478. A payment of $100, or any other amount of money, for a license to sell spirituous liquors, is not a "tax," within Const. art. 10, 5, providing that no tax shall be levied, except in pursuance of law, etc. Henry v. State, 26 Ark. 523, 525. The power to tax or restrain the sale of liquor, when given to a municipal corporation, includes the power to license the sale thereof. Town of Mt. Carmel v. Wabash County, 50 Ill. 69, 73. Licenses to keep saloons are issued under the police power, while licenses to conduct other classes of business do not need police regulation. Such licensing is used simply as a means of obtaining revenue; and, whether granted under the police power or the taxing power, the sums paid for them are a source of revenue, and in equity constitute a tax on the particular business. Fritsch v. Salt Lake County, 47 Pac. 1026, 1029, 15 Utah, 83. "Taxes," as used in a statute providing that all land and other taxable property situated within the limits of a corporation shall be exempt from the payment of parish taxes, etc., does not include parish licenses, such as saloon keepers' licenses, etc. The word "taxes," as used in the statute, means property taxes. Parish of Morehouse v. Brigham, 6 South. 257, 258, 41 La. Ann. 665. Tax on gross receipts of railroad. state Constitution by the people of Missouri An ordinance adopted as a part of the July 4, 1865, imposing a tax on the gross receipts of a certain railroad company, imposes a tax, notwithstanding the fact that The imposition of a state tax upon such the ordinance provides that the same shall privileges, pursuits, and occupations as are be appropriated by the General Assembly in of no real use to society, such as the occu- payment of the principal and interest due pation of a wholesale dealer in spirituous and to become due upon the bonds issued liquors, is not a tax upon property, within by the state to the company. Pacific R. Co. the meaning of the Constitution of Arkan- v. Maguire, 87 U. S. (20 Wall.) 36, 44, 22 L. sas, providing for the taxation of property Ed. 282. according to its true value in money. Straub v. Gordon, 27 Ark. 625, 628. Tolls. A "tax" is a demand of sovereignty, while a "toll" is a demand of proprietorship. City of St. Louis v. Western Union Tel. Co., 13 Sup. Ct. 485, 487, 148 U. S. 92, 37 L. Ed. 380. "Taxation" is a legislative power, speclally mentioned in the Constitution, but always in connection with the subject of revenue for the support of the government generally, or some particular department or branch of it; and it is in such connection Tolls for the actual use of passage over that we find the requirement of uniformity. land or water highways cannot be treated This being so, we are led to conclude that this constitutional injunction has reference solely to taxation pure and simple, according to the commonly accepted meaning of the term, for the purpose of revenue only, and not those impositions made incidentally under the police power of the state, exerted either directly or by delegation as a means of constraining and regulating what may be regarded as a pernicious or offensive act or business; so that the exaction of license fees under the act regulating the taxation of intoxicating liquors is not "taxation" in either the ordinary or constitutional signif as taxes. They are not levied on the property or on persons as their share of any public burden laid on the people, but they are a fixed compensation in lieu of a quantum valebat for the use of that which has value and which is actually used to advantage. Thus taxes levied on those who used a stream, which had been improved for logging purposes by the state, is not a tax. It is collected for the same purpose as turnpike tolls, or railway and wharfage charges, which no one ever has supposed were public taxes, or a tax at all. Manistee River Imp. Co. v. Sands, 19 N. W. 199, 200, 53 Mich, 593. By the terms "tax," "impost," and The term "taxes" does not include water "duty," as used in the ordinance of 1787, rates paid by the consumers under the statis meant a charge for the use of the govern- ute incorporating the water commission of ment, not compensation for improvements. Detroit. The lien, therefore, though enforThe fact that, if any surplus remained from ced in the same way as a lien for taxes, is the tolls over what is used to keep locks in really a lien for indebtedness, like that in the river in repair and for their collection, force on mechanics' contracts or against it is to be paid into the state treasury as a ships and vessels. Jones v. Water Com'rs part of the revenue of the state, does not of Detroit, 34 Mich. 273, 276. change the character of the charge or impost. Huse v. Glover, 7 Sup. Ct. 313, 316, 119 U. S. 543, 30 L. Ed. 487; Ouachita & M. R. Packet Co. v. Aikin, 7 Sup. Ct. 907, 909, 121 U. S. 444, 30 L. Ed. 976. Town taxes. TAX BOOK. The term "tax book" or "tax list," in the statutes relating to the duty of the county auditor to correct the assessment, refers to the current list or book, and to none other. Jewett v. Foot, 93 N. W. 364, 366, 119 Iowa, 359. The word "taxes," as used in 2 Rev. St. p. 50, imposing a tax of 25 cents on each share of stock owned by individuals of a bank, and declaring that the said bank should TAX CERTIFICATE. not be liable to any further tax, prohibits the imposition of all taxes, town as well as county or state. Bank of Cape Fear V. Deming, 29 N. C. 55, 59. Water rents. Water rents are not taxes, entitling one to notice as of the levy of a tax. Silk man v. Board of Water Com'rs, 24 N. Y. Supp. 806, 807, 71 Hun, 37. Within the meaning of Starr & C. Ann. St. 1896, c. 24, conferring on cities and villages power to provide for water supply for use and protection from fire, and paragraph 445, authorizing the city council to tax, assess, and collect from the inhabitants such tax, rates, and rents for the use and benefits of water used or supplied to the inhabitants by such waterworks, the words, "tax, rents, and rates" refer to the mere operation of the plant and the collection of its revenues, and not to any mode of taxation, strictly speaking. The revenues and rates that are spoken of are the earnings of the plant from the use of the water by those persons who take the same, and hence the city is not authorized to levy a tax, not for the use of the water, but in addition thereto. Village of Lemont v. Jenks, 64 N. E. 362, 364, 197 Ill. 363, 90 Am. St. Rep. 172. In A tax is a demand of sovereignty. the case of Wagner v. City of Rock Island, Any tax certificate, see "Any." A "tax certificate" is a certificate of the sale of land on account of the nonpayment of taxes, in the consideration of the payentitles the holder, under certain conditions, ment of such taxes by the purchaser, and to a legal conveyance of the land. It is in no sense a negotiable instrument, a chose in action, or a chattel interest. It is evidence of an equitable title to the land itself, and enables the purchaser, on certain conditions and in a certain time, to call in the legal title. It savors so strongly of realty that such title descends to the heir and is not assets in the hands of the executor. Eaton V. Manitowoc County, 44 Wis. 489, 492. The term "tax certificate," as used in Laws 1877, c. 37, § 6, requiring notice of the expiration of the time of redemption to he served is only applicable to the certificate of a tax sale prescribed in Gen. St. 1878, c. 11, § 84, and the certificate of assignment provided for in section 89. Nelson v. Central Land Co., 29 N. W. 121, 122, 35 Minn. 408. TAX CLAIM. The term "tax claim," as used in an act relating to municipal liens, means the claim Pa. 1897, col. 1269, § 55. filed to recover taxes. 4 P. & L. Dig. Laws 34 N. E. 545, 146 Ill. 139, 21 L. R. A. 519, it is said: "Taxes are the enforced proportional contribution from persons and prop- TAX COLLECTOR. erty, levied by the state, by virtue of its sovereignty, for the support of the govern- turns the money which he collects over to A "tax collector" is a tax gatherer. He ment and for all public needs, and they are therefore justly and properly subjected to the treasurer, if he be not treasurer. Mutual the rule of uniformity. Rates charged by Life Ins. Co. of New York v. Martien, 71 the city for water supplied by it are not taxes, within Const. art. 10, § 3, requiring all taxes to be uniform. ing Ass'n v. City of St. 525, 528, 140 Mo. 419. Pac. 470, 471, 27 Mont. 437. The "tax collector" is the official repSt. Louis Brew-resentative of the public in the matter of the Louis, 37 S. W. collection of taxes. He is empowered to enforce collection by resort to summary rem TAX COLLECTOR 6887 TAX LIST edies, and upon sale he executes the papers | taxes, it shall be construed to mean a colevidencing the same. For the exercise of lector appointed by the auditor of public those remedies the tax list and warrant are accounts. Code Va. 1887, § 633 [1 Code Va. his sufficient authority. Upon him alone de- 1904, p. 310]. volves the duty of providing the taxpayer with the proper evidence of his payment of taxes and its application. Lobban v. State, 64 Pac. 82, 86, 9 Wyo. 377. A collector of town taxes, though not named in any list of officers authorized by the charter of the town, is a public officer, within a statute punishing public officers for embezzlement. State v. Walton, 62 Me. 106, 111. A collector of taxes is a public officer whose duty it is to collect the taxes and pay the same into the treasury of the state or to the parties entitled. State v. Nicholson, 8 Atl. 817, 818, 67 Md. 1. TAX DEED. As color of title, see "Color of Title." A tax deed is a creature of statute, and must have that meaning and intendment only which the statute directs. Kepley v. Fouke, 58 N. E. 303, 187 Ill. 162. TAX DUPLICATE, As written instrument, see "Written Instrument." See "Corporate Purpose." A collector is an officer who collects or TAX FOR CORPORATE PURPOSE. receives taxes, duties, or other public revenues. It is sufficient if he is authorized by law to receive the money for and on behalf of the public, and he need not possess the power to enforce payment by a legal process. State v. Moores, 73 N. W. 299, 303, 52 Neb. 770. "Collector," as used in Pub. St. art. 16, c. 8, 117, requiring county treasurers to pay over the state tax in like manner as heretofore required of the sheriff or collector, is synonymous with "sheriff." Bingham v. Winona County, 8 Minn. 441, 447 (Gil. 390, 395). Gen. St. c. 92, art. 1, § 6, providing that the delinquent tax list shall be placed in the hands of the sheriff or collector for collection, means one who has been appointed in place of the sheriff to collect the taxes. Baldwin v. Hewitt, 11 S. W. 803, 88 Ky. 673. A collector is the agent of the town or city in collecting a tax, and the town is really the only party interested. So an action to recover city taxes illegally assessed should be against the city, and not the collector. Fish v. Higbee, 47 Atl. 212, 22 R. I. 223. The word "collector," or "collectors," when used in the revenue act, shall be construed to include county, town, district, and deputy collectors. Hurd's Rev. St. Ill. 1901, p. 1493, c. 120, § 292, subd. 4. The term "collector," as used in the chapter relating to the collection of taxes, shall mean a person receiving a tax list and a warrant to collect the same. Rev. Laws Mass. 1902, p. 229, c. 13, § 1. The word "collector" includes any person intrusted with the collection of public revenue. Shannon's Code Tenn. 1896, § 67. Wherever the word "collector" is used in the chapter relating to the collection of TAX FOR COUNTY PURPOSE. TAX LEGISLATION. "Tax legislation" means the making of laws that are to furnish the measure of every man's duty in support of the public burdens and the means of enforcing it. Imposing on agents of foreign insurance companies the duty of paying 2 per cent. on the premiums received by them to the Philadelphia Association for the Relief of Disabled Firemen is not, either in form or substance, tax legislation, but is a mere requisition that one class of men shall pay their money to another class, and is not legislation at all. Philadelphia Ass'n v. Wood, 39 Pa. (3 Wright) 73, 82. TAX LIST. The terms "list" and "grand list," as they are used in our statutes relative to taxation, mean a schedule of the polls and ratable estate of the inhabitants, upon which taxes are to be assessed. A list that only represents real estate answers the requirement of the statute as fully as would a list that represented the real and personal property. Such is the meaning of the term in Gen. St. p. 1036, providing that every male citizen of the age of 21 years, whose list shall have been taken in any town or city at the annual assessment next preceding any town or city meeting, shall be legal voters intention of the law was to allow such perin town meetings, as it is obvious that the sons as are subject to taxation in towns and are residents therein to vote in the annual meetings of such towns. Wilson v. Wheeler. 55 Vt. 446, 452. |