of the State, was in effect a tax upon exports, and the law was consequently void.1

Congress also is vested with power to regulate commerce; but this power is not so far exclusive as to prevent regulations by the States also, when they do not conflict with those established by Congress.2 The States may unquestionably tax the subjects of commerce; and no necessary conflict with that complete control which is vested in Congress appears until the power is so exercised as to defeat or embarrass the congressional legislation. Where Congress has not acted at all upon the subject, the State taxation cannot be invalid on this ground; but when national regulations exist, under which rights are established or privileges given, the State can impose no burdens which shall in effect make the enjoy ment of those rights and privileges contingent upon the payment of tribute to the State.

4

It is also believed that that provision in the Constitu[* 487] tion of the United States, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States," will preclude any State from imposing upon the property within its limits belonging to citizens of other States any higher burdens by way of taxation than are imposed upon the like property of its own citizens. This is the express decision of the Supreme Court of

1

Almy v. People, 24 How. 169. See also Brumagim v. Tillinghast, 18 Cal. 265; Garrison v. Tillinghast, ib. 404.

2 Cooley v. Board of Wardens, 12 How. 299. See also Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245.

3 In Brown v. Maryland, 12 Wheat. 141, it was held that a license fee of fifty dollars, required by the State of an importer before he should be permitted to sell imported goods, was unconstitutional, as coming directly in conflict with the regulations of Congress over commerce. For further discussion of this subject, see New York v. Miln, 11 Pet. 102; License Cases, 5 How. 504; Lin Sing v. Washburn, 20 Cal. 534; Erie Railway Co. v. New Jersey, 2 Vroom, 531, reversing same case in 1 Vroom; Pennsylvania R.R. Co. v. Commonwealth, 3 Grant, 128; Hinsen v. Lott, 40 Vt. 133; Commonwealth v. Erie R.R., 62 Penn. St. 286; Osborn v. Mobile, 44 Ala. 493; Wolcott v. People, 17 Mich. 68. In Crandall v. Nevada, 6 Wall. 35, it was held that a State law imposing a tax of one dollar on each person leaving the State by public conveyance was not void as coming in conflict with the control of Congress over commerce, though set aside on other grounds. This general subject underwent some discussion in the recent case of Ward v. Maryland, 12 Wall. 418; and also in Case of State Freight Tax, 15 Wall. 232, and Case of tax on Railway Gross Receipts, 15 Wall. 284. 4 Art. 4, § 2.

Alabama,1 following in this particular the dictum of an eminent Federal judge at an early day,2 and the same doctrine has been recently affirmed by the Federal Supreme Court.3

Having thus indicated the extent of the taxing power, it is necessary to add that certain elements are essential in all taxation, and that it will not follow as of course, because the power is so vast, that every thing which may be done under pretence of its exercise will leave the citizen without redress, even though there be no conflict with express constitutional inhibitions. Every thing that may be done under the name of taxation is not necessarily a tax; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle of constitutional government.

In the first place, taxation having for its only legitimate object the raising of money for public purposes and the proper needs of government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power, and must therefore be unauthorized. In this place, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that whenever the legislature shall overstep the legitimate bounds of their authority, the case will be such that the courts can interfere to arrest their action. There are many cases of unconstitutional action by the representatives of the people which can be reached only through the ballot-box; and there are other cases where the line of distinction between that which is allowable and that which is not is so faint and shadowy that the decision of the legislature must be accepted as final, even though the judicial opinion might be different. But there are still other cases where it is entirely possible for the legisla- [* 488] ture so clearly to exceed the bounds of due authority that we cannot doubt the right of the courts to interfere and check what can only be looked upon as ruthless extortion, provided the nature of the case is such that judicial process can afford relief.

1 Wiley v. Parmer, 14 Ala. 627.

2 Washington, J., in Corfield v. Coryell, 4 Wash. C. C. 380. And see Campbell v. Morris, 3 H. & McH. 554; Ward v. Morris, 4 H. & McH. 340; and other cases cited, ante, p. 16, note. See also Oliver v. Washington Mills, 11 Allen, 268. Ward v. Maryland, 12 Wall. 430. Case of State Tax on foreign held bonds,

15 Wall. 300.

An unlimited power to make any and every thing lawful which the legislature might see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen.1

It must always be conceded that the proper authority to determine what should and what should not properly constitute a public burden is the legislative department of the State. This is not only true for the State at large, but it is true also in respect to each municipality or political division of the State; these inferior corporate existences having only such authority in this regard as the legislature shall confer upon them.2 And in determining this question, the legislature cannot be held to any narrow or technical rule. Certain expenditures are not only absolutely necessary to the continued existence of the government, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude, or charity. The officers of government must be paid, the laws printed, roads constructed, and public buildings erected; but with a view to the general well-being of society, it may also be important that the children of the State should be educated, the poor kept from starvation, losses in the public service indemnified, and incentives held out to faithful and fearless discharge of duty in the future, by the payment of pensions to those who have been faithful public servants in the past. There will therefore be necessary expenditures, and expenditures which rest upon considerations of policy alone; and in regard to the one as much as to the other, the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive.

Very strong language has been used by the courts, in some of

1 Tyson v. School Directors, 51 Penn. St. 9; Morford v. Unger, 8 Iowa, 92; Talbot v. Hudson, 16 Gray, 421; Hansen v. Vernon, 27 Iowa, 28; Allen v. Jay, 60 Me. 139; Ferguson v. Landraw, 5 Bush, 230; People v. Township Board of Salem, 21 Mich. 459; Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255. "6 'It is the clear right of every citizen to insist that no unlawful or unauthorized exaction shall be made upon him under the guise of taxation. If any such illegal encroachment is attempted, he can always invoke the aid of the judicial tribunals for his protection, and prevent his money or other property from being taken and appropriated for a purpose and in a manner not authorized by the Constitution and laws." Per Bigelow, Ch. J., in Freeland v. Hastings, 10 Allen, 575. See Hooper v. Emery, 14 Me. 379; People v. Suprs. of Saginaw, 26 Mich. 22. Litchfield v. Vernon, 41 N. Y. 123. See ante, p. 230, and cases cited in note to p. 489.

the cases on this subject. In a case where was questioned

*

the validity of the State law confirming township action [* 489] which granted gratuities to persons enlisting in the mili

tary service of the United States, the Supreme Court of Connecticut assigned the following reasons in its favor:

"In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary; and this is not that

case.

"Second. If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy, and not of natural justice, and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular colleges or schools, or grants of pensions, swords, or other mementos for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned.

"Third. The government of the United States was constituted by the people of the State, although acting in concert with the people of the other States, and the general good of the people of this State is involved in the maintenance of that general government. In many conceivable ways the action of the town might not only mitigate the burdens imposed upon a class, but render the service of that class more efficient to the general government, and therefore it must be presumed that the legislature found that the public good would be thereby promoted.

"And fourth. It is obviously possible, and therefore to be intended, that the General Assembly found a clear equity to justify their action."

"1

1 Booth v. Woodbury, 32 Conn. 128. See to the same effect Speer v. School Directors of Blairville, 50 Penn. St. 150. The legislature is not obliged to consult the will of the people concerned in ordering the levy of local assessments for the public purposes of the local government. Cheaney v. Hooser, 9 B. Monr. 350; Slack v. Maysville, &c., R.R. Co., 13 B. Monr. 26; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 353. Compare People v. Common Council of Detroit, 27 Mich.

And the Supreme Court of Wisconsin has said: "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... It is

not denied that claims founded in equity and justice, in the [* 490]* largest sense of those terms, or in gratitude or charity, will

support a tax. Such is the language of the authorities." 1 But we think it clear in the words of the Supreme Court of Wisconsin, that "the legislature cannot. . . in the form of a tax take the money of the citizen and give to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute." 2 Or, as stated by the Supreme Court of Pennsylvania, "the legislature has no constitutional right to... levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them." And by the same court, in a still later case, where the question was whether the legislature could lawfully require a municipality to refund to a bounty association the sums which they had advanced to relieve themselves from an impending military conscription," such an enactment would not be legislation at all. It would be in the nature of judicial action, it is true, but wanting the justice of notice to

'Brodhead v. City of Milwaukee, 19 Wis. 652; Mills v. Charlton, 29 Wis. 411; Spring v. Russell, 7 Greenl. 273; Williams v. School District, 33.

2 Per Dixon, Ch. J., in Brodhead v. Milwaukee, 19 Wis. 652. See also Lumsden v. Cross, 10 Wis. 282; Opinions of Judges, 58 Me. 590; Moulton v. Raymond, 60 Me. 121; post, 494 and note.

' Per Black, Ch. J., in Sharpless v. Mayor, &c., 21 Penn. St. 168. See Opinions of Judges, 58 Me. 590.