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pure charity.27 In regard to the question whether the facts existing in any given case bring it within the description of that class of claims which Congress can and ought to recognize as founded upon equitable and moral considerations and grounded upon principles of right and justice, we think that generally such question must in its nature be one for Congress to decide for itself. Its decision recognizing such a claim and appropriating money for its payment can rarely, if ever, be the subject of review by the judicial branch of the Government."

§ 270. Equality in Taxation.

The Fourteenth Amendment requires upon the part of the States that they shall not deny to any persons within their several jurisdictions the equal protection of the laws, and this obligation is, of course, operative in the field of taxation. No similarly phrased obligation is laid upon the Federal Government, but the provision of the Fifth Amendment forbidding the taking of property without due process of law imposes an obligation broad. enough to cover all or nearly all cases of unequal protection of the laws. And, furthermore, as to taxes it is specifically provided that they shall be uniform throughout the United States.28

Whether or not the equal protection of the laws is included within the general protection against the taking of life, liberty, or property without due process of law, the provision for equal protection does certainly mark off a specific right or a group of rights within the general field of rights against the violation of which by the States he is guaranteed by the Constitution. That this protection applies within the field of taxation is well established. A case clearly stating this doctrine is that of County of Santa Clara v. S. Pacific R. R. Co.,28a in which Justice Field rendered the opinion. "With the adoption of the Fourteenth

27 Senator Daniel in a speech on the Blair Educational Bill enumerated some forty instances in which Congress had appropriated money to private individuals. Cong. Record, XXI, Pt. 3, p. 2295, 1890.

28 The Insular Cases held that this clause has no application to unincorporated Territories.

28a 18 Fed. Rep. 385.

Amendment," Field declared, "the power of the States to oppress any one under any pretense or in any form was forever ended; and henceforth all persons within their jurisdiction could claim equal protection under the laws. And by equal protection is meant equal security to every one in his private rights - in his right to life, to liberty, to property, and to the pursuit of happiness. It implies not only that the means which the laws afford for such security shall be accessible to him, but that no one shall be subject to any burdens or charges than such as are imposed upon all others under like circumstances. This protection attends every one everywhere, whatever be his position in society or his association with others, either for profit, improvement or pleasure.

. (No State in such is the sovereign command of the whole people of the United Statesno State shall touch the life, the liberty, or the property of any person, however humble his lot or exalted his station, without due process of law, and no State, even with due process of law, shall deny to any one within its jurisdiction the equal protection of the law. Unequal taxation, so far as it can be prevented is therefore, with other unequal burdens, prohibited by the Amendment. There undoubtedly are, and always will be, more or less inequalities in the operation of all general legislation arising from the different conditions of persons from their means, business, or position in life, against which no foresight can guard. But this is a very different thing, both in purpose and effect, from a carefully devised scheme to produce such inequality; or a scheme, if not so devised, necessarily producing that result. Absolute equality may not be attainable, but gross and designed departures from it will necessarily bring the legislation authorizing it within the prohibition."

As has been already noted, the determination as to when a tax shall be levied and upon what persons and property, and by what rule it is to be assessed and by what means collected is a legislative function. However, in levying an ad valorem tax, the legislature may not determine the assessment value of particular pieces of property. So also it follows that while the legislature may, within

its discretion, determine freely what occupations, or classes of property or persons are to be taxed, it may not select out from the general mass of property, or general citizen body, particular pieces of property or particular individuals to bear the burden of the tax. When, therefore, a tax is laid upon certain classes of property or of persons, there must be some reasonable basis for the classifications adopted. By this is meant that there must be some substantial reason why the units, whether of property or of individuals, should be treated as distinct groups.

In Bell's Gap Railroad Co. v. Pennsylvania20 was involved the validity of a state law which levied a certain tax on all moneyed securities according to their actual value, except that as to all bonds and other securities issued by corporations their nominal or par value should be the basis. It being argued that this violated the requirement of the Fourteenth Amendment as to the equal protection of the laws, the court said: "But, be this as it may, the law does not make any discrimination in this regard which the State is not competent to make. All corporate securities are subject to the same regulation. The provision in the Fourteenth Amendment, that no State shall deny to any person within its jurisdiction the equal protection of the laws, was not intended to prevent a State from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries and the property of charitable institutions. It may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness, or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state legislature, or the people of the State in framing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such 23 134 U. S. 232; 10 Sup. Ct. Rep. 533; 33 L. ed. 892.

as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition. It would, however, be impracticable and unwise to attempt to lay down any general rule or definition on the subject, that would include all cases. They must be decided as they arise. We think that we are safe in saying that the Fourteenth Amendment was not intended to compel the States to adopt an iron rule of taxation. If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some of the States, whose object is to secure equality of taxation, and which are usually accompanied with qualifications deemed material; but it would render nugatory those discriminations which the best interests of society require, which are necessary for the encouragement and useful industries, and the discouragement of intemperance and vice, and which every State, in one form or another, deems it expedient to adopt."

In American Sugar Refining Co. v. Louisiana30 it was held that the equal protection of the laws was not denied by a license tax imposed upon manufacturers of sugar, but exempting from its operation those who refined the products of their own plantations. The opinion declares: "The act in question does undoubtedly discriminate in favor of a certain class of refiners, but this discrimination, if founded upon a reasonable distinction in principle, is valid. Of course, if such discrimination were purely arbitrary, oppressive, or capricious, and made to depend on differences of color, race, nativity, religious opinions, political affiliation, or other consideration having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes."

§ 271. Uniformity in Taxation.

Granting the right of the legislature to classify persons and property for purposes of taxation, the requirements of due process of law and of the additional provision found in the federal Con30 179 U. S. 89; 21 Sup. Ct. Rep. 43; 45 L. ed. 102.

stitution and in almost all if not in all of the state constitutions that all laws shall be uniform, make it necessary that the assessment of all persons and property within the class or district seleeted for taxation shall be according to a uniform rule. Cooley states the principle as follows: "As to all taxation apportioned upon property, there must be taxing districts and within these districts the rule of absolute uniformity must be applicable. A state tax must be apportioned through the State, a county tax through the county, a city tax through the city; while in cases of local improvements, benefiting in a special and peculiar manner some portion of the State or of a county or city, it is competent to arrange a special taxing district within which the expense shall be apportioned." 31 And again: "The rule of apportionment must be uniform throughout the taxing district, applicable to all alike, but the legislatures have no power to arrange taxing districts arbitrarily, and without reference to the great fundamental principles of taxation that the burden must be borne by those upon whom it justly rests. The Kentucky and Iowa decisions hold that, in a case where they have manifestly and unmistakably done so, the courts may interfere and restrain the imposition of municipal burdens on property which does not properly belong within the municipal taxing district at all.” 32

All that the rule of uniformity requires is this, that within the classes or districts taxed the law shall operate according to a uniform rule. Thus, for example, it has been generally held that a city levying a general tax may not discriminate between different wards or sections, for all property within a taxing district must be taxed alike.33

31 Cooley, Const. Lim., 7th ed., 711.

32 Const. Lim., 7th ed., 724. The cases referred to are Morford v Unger, 8 Iowa, 82; City of Covington v. Southgate, 15 B. Monr. 491; Arbegust v. Louisville, 2 Bush, 271; Swift v. Newport, 7 Bush, 37.

33 This does not hold true where, by special contract made at the time a rural district is incorporated into the city, special treatment with reference to taxation has been promised. The exemption of certain pieces of property from taxation where this exemption has been for some public purpose or in return for consideration received, does not violate this principle.

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