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is provided by the United States constitution, and by almost every State constitution, that “no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.” At the present time, and in this country, the necessity for this constitutional provision does not seem to be very urgent, and it is not. But at the time when the provision was incorporated into the constitution, the practice was so common in some countries, and the danger of its being generally adopted in our own country [it had in colonial days been occasionally resorted to] appeared to be sufficiently imminent in order to justify its enactment. It is well that there should be an unequivocal declaration on so important a matter; for no more efficient means of oppression of a people can be devised than the power, at all times and without any limitation, to throw upon an objectional person the burden of housing and supporting a company of soldiers. The constitutional provision just cited, protects the house of the citizen against all such intrusions in time of peace, and in war the matter is required to be specially regulated by law. It is safe to say, however, that, with the present temper of public opinion, the exercise of this power would not be tolerated now, even in time of war, unless provision is made for the full compensation of those on whom this burden should be made to fall.'
SECTION. 129. Taxation - Kinds of taxes.
129a. Limitations upon legislative authority.
§ 129. Taxation-Kinds of taxes. The functions of a government can only be exercised and kept in operation with the aid of material means furnished by the people ; and no government could be properly called stable, which had to depend upon voluntary contributions. The exaction of these means, therefore, is a power which a government inherently and necessarily possesses without any express grant. A tax, is, in its most comprehensive sense, any charge or assessment levied by the government for public purposes upon the persons, property, and privileges of the people within the taxing district or State. It is a forced contribution of means towards the support of the government.
1 U. S. Const. Amend., art. 3.
. See post, $ 137, in reference to forcible appropriation of private property in time of war.
Taxes may assume very many forms, varying according to the thing, privilege, or right which is taxed. They may take the form of duties, imposts and excises, and the taxes imposed by the general government are confined to these. The power to impose these indirect taxes is expressly granted to the United States government. The constitution provides that “ the congress shall have power to levy and collect taxes, duties, imposts, and excises to pay the debts, and provide for the common defense and general wel. fare of the United States ; but all duties, imposts and excises shall be uniform throughout the United States.” Duties and imposts are the taxes levied upon importations into this country, and under this express power it is claimed that the general government may establish a protective tariff, which has already been shown to be in violation of constitutional liberty.? Excises are the taxes laid upon the manufacture and sale of articles of merchandise, upon licenses to follow certain occupations, and upon the enjoyment of franchises or privileges. The internal revenue tax upon the manufacture and sale of intoxicating liquors and tobacco are at present the only excises levied by the general government. But there is no limitation upon the power of the government in selecting the subjects of taxation; and dur
i Const. U. S., art. I, § 8, ch. 1. 2 See ante, 91.
3 Since the above was written at the last session of Congress, 1885 1886, a law was passed imposing a tax upon the sale and manufacture of oleomargarine.
l ing the late civil war, and immediately thereafter, there were taxes, in the form of stamp duties on matches, bank checks, legal papers and the like. The United States government is also authorized by the constitution to impose direct taxes, which has been held to include any capitation and land taxes, subject to the limitation that they must be apportioned among the several States according to the representative population.”
A very common form of State and municipal taxation is the exaction of license fees for the privilege of pursuing any occupation or profession, a tax, therefore, upon occupations. The constitutional character of the license tax, and its points of distinction from the license fee exacted in connection with the police regulation of an occupation, the pursuit of which is likely to prove dangerous or injurious to society, have already been fully explained in another place, and need not be discussed in this connection. The States have also at times imposed a poll-tax upon the citizen, and made the payment of it a condition precedent to the exercise of the right of suffrage. But this mode of taxation incurs great popular disfavor, and is very rarely, if at all, employed
The most common form of State and municipal taxation is the taxation of property, both real and personal, and there is a fundamental difference between the character of taxation generally, including the taxation of personal property, and the character of taxation of real property. Taxation, generally, is imposed upon citizens and resident aliens, resting upon the permanent or temporary allegiance they owe to the government; and they are supposed to re
1 Hylton v. United States, 3 Dall. 171; Pacific Ins. Co. 0. Soule, 7 Wall. 433; Veazie Bank v. Fenno, 8 Wall. 533; Springer v. United States, 192 U. S. 586.
2 Const. U. S. art. I, § 2; art. I, § 9. 3 See ante, $ 101.
ceive a fair equivalent for these involuntary contributions in the domestic peace and order, and the protection to their rights of person and property, which a stable government ensures. The obligation to pay taxes in such cases rests upon the fact of domicile and citizenship. But the taxation of real property rests upon other grounds. In its application to real property, taxation assumes a decidedly feudal character. If the power to tax real property rested solely upon the obligations of citizenship or domicile, as most of the legal authorities seem to hold, then it could only be levied upon those proprietors of lands who were citizens. At the time when the earlier cases, which have been cited, were decided, no one but a citizen could become the proprietor of lands in the United States, and this coincidence no doubt caused the learned judges to make the statements, upon which the claim of a connection between citizenship and taxation of real property rests.
But since then the restriction upon the proprietorship of lands by aliens has been removed in most of the States, and now all land situated within the jurisdiction of the government which levies the tax are taxed for their proportionate share, whether the land is owned by citizens or aliens, residents or nonresidents. The levying of a tax upon land, and the enforcement of the levy, are proceedings in rem against the land, and not in personam against the proprietors.? Taxation of real property is nothing more than the reditus which the tenant of a feud paid to the lord of the manor for the enjoyment of the land; in this country, in the case tenancies in fee, the State taking the place of the intermediate landord, as in England, the king did in the case of tenancies in capite. Indeed the obligation of citizenship is a modern outgrowth of the allegiance of the feudal system, which the vassal or tenant of land owed through his lord to the king, as the lord paramount or ultimate proprietor of the lands of the kingdom. The obligation of citizenship, apart from the obligations of a tenant of lands, was unknown to the feudal age. But whatever may bo the proper theory in respect to the character and the authority of taxation, the power of the government to levy the proportionate share of taxes upon the lands owned by aliens has never been questioned, and an exemption of such lands from the operation of the levy would most surely meet with popular demonstrations of disapproval.
1 Providence Bank v. Billings, 4 Pet. 561; McCulloch o. Maryland, 4 Wheat. 428; Opinions of Judges, 48 Me. 591 ; People v. Mayor, etc., 4 N. Y. 422; Clark v. Rochester, 24 Barb. 482; Phila. Assn., etc., 0. Wood, 39 Pa. St. 73; Moale v. Baltimore, 5 Md. 314; Doe v. Deavors, 11 Ga. 79; Chicago v. Larned, 34 Ill. 279; Davison v. Ramsay Co., 18 Minn. 481.
2 Cooley on Tax. 360. In some of the States, however, a distinction it made by statute between the resident and non-resident lands as they are called, imposing a personal liability upon the owners of the residens lands. Cooley on Tax. 278, 279.
§ 129a. Limitations upon legislative authority. - The power of a government to impose taxes is almost without limitation and necessarily so, because of the varied character of governmental functions and needs. Chief Justice Marshall has almost denied the existence of any limitations upon the power of taxation. He said, in one case, “the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable or the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and offensive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their property ; and as the exigencies of the government
1 Tiedeman on Real Prop. $ 20; 1 Washb. on Real Prop. 46, citing 3 Guiz. Hist. Civ. 108.