or ministry; that no power to levy taxes shall be delegated to individuals or private corporations; and taxes shall not be levied for their benefit, without the consent of the tax-payer. The ad valorem rule was first introduced, and then only applicable to real property, in the Constitution of 1865, by the mandate, "all lands liable to taxation in this State, shall be taxed in proportion to their value." On personal property, taxes could be imposed as the legislature might consider most expedient. The rule was extended, and its application enlarged, in the Constitution of 1868, by incorporating therein an article providing: "All taxes levied on property in this State, shall be assessed in exact proportion to the value of such property;" and also a prohibition, that the General Assembly shall not have power to authorize any municipal corporation, "to levy a tax on real and personal property to a greater extent than two per centum of the assessed value of such property." The provision of the Constitution of 1868, first quoted, entered in totidem verbis, into the present Constitution, with a superadded prohibition as to the rate of taxation to be levied by the General Assembly; and the rate authorized by municipal corporations was reduced. There are other provisions relating to taxation in the two later Constitutions, which it is unnecessary to note, as they have no material bearing on the question under consideration.

Having been taught by experience, that no legislative power is more liable to oppressive use than the taxing power, and having suffered evils by resting it too broadly on discretion, the people have shown, in the history of the successive constitutions, a progressive policy to restrain the power of the legislative department in this respect, and to remedy existing, and guard against apprehended evils, by imposing limitations consistent with the public needs, and the public safety. The just expositor, in interpreting the constitutional mandates and inhibitions, will consult the changes that have been made from time to time, the causes which produced them, and the mischief intended to be remedied. The words used should be allowed such operation and force as will reasonably accomplish the purposes proposed, but without extension beyond their legitimate meaning, and so as to avoid embarrassing and disabling proper governmental administration. Thus considered and interpreted, do the provisions of the Constitution apply to every subject of taxation, to which resort is usually, and may be legitimately made, to raise money for public purposes and needs; or only to direct taxation on property as such, by prohibiting an arbitrary, specific standard, and requiring assessment in proportion to its value? Was it intended to limit the subjects of taxation, or only to prescribe the mode of assessing taxes, when levied on a particular subject?

Fortunately we are not without aid in interpreting these provisions. Substantially similar pro

visions were contained in the Constitutions of some of the other States, which had received judicial construction, prior to their incorporation in either of our Constitutions. The Constitutions of California, Texas, Virginia, Louisiana, Illinois, Ohio, and other States, contain similar or equivalent provisions, which had been construed, not to prescribe a limit as to the subjects of taxation, but as intended to prohibit an arbitrary taxation of property, as to kind or quality, without regard to value. People v. Coleman, 4 Cal. 46; Eyre v. Jacob, 14 Gratt. 422; Sawyers v. City of Alton, 3 Scam. 127; Aulanier v. Governor, 1 Tex. 653; Baker v. Cincinnrti, 11 Ohio St. 534. In Aulanier v. Governor, supra, it is said: "The word property, as used in the Constitution, cannot, by any forced construction, be tortured into meaning an occupation, calling or profession." In Glasgow v. Rowse, 43 Mo. 479, Wagner, J., says: "That taxes should be uniform, and levied in proportion to the value of the property to be taxed, is so manifestly just, that it commends itself to universal assent. notwithstanding the constitutional provision,there are some kinds of taxes that are not usually assessed according to the value of property, and some which could not be thus assessed; and there is, perhaps, not a State in this Union, though many of them have in substance the same constitutional provision, which does not levy other taxes than those imposed on property.

*

But

In

It therefore seems plain, that the constitutional requirement, that 'taxation upon property shall be in proportion to its value,' does not include every species of taxation; nor, indeed, would it be possible to place such an interpretation upon it without doing the grossest injustice." Buroughs on Taxation, § 54, referring to such limitations, the author observes: "These provisions, as a general rule, are held to apply to property alone, and not to include taxation on privileges or occupations, or upon the exercise of a civil right, as taking by devise or descent." Cooley Cons. Lim., 619; Western U. Tel. Co.v. Mayor, 28 Ohio St. 521; State v. Western U. Tel. Co., 63 Me. 518.

It is conceded that the word property is sometimes employed in the revenue laws in its comprehensive sense, and as synonymous with subjects; and will be so construed, when required by the context, or the manifest purpose of the law will be otherwise defeated. Such is the case of Lehman v. Robinson, 59 Ala. 219. Being used in more than one sense, the inquiry is, in what meaning is it employed in respect to the levying of taxes? If there be nothing showing a different intention, words ordinarily are to be taken in their usual and familiar import; and when general and continuous usage in legislation respecting a particular subject-matter was imparted a particular meaning, subsequent use of the same word in legislation relating to the same subjectmatter creates a reasonable inference, that it was intended to be employed in the same sense, there

being nothing in the context showing a different intention. Taxes are not levied upon the right a man may have to anything, the right of possession, use, enjoyment and disposition, which is property taken in its legal and technical signification; but upon the subject of these rights. Therefore, in specifying the subjects, generally an obvious distinction is recognized and maintained between property taxed as such, and the other subjects of taxation. In Lott v. Rose, 38 Ala. 156, the question was, whether the authority conferred on the County of Mobile to assess and collect a tax, not exceeding twenty cents upon each hundred dollars of taxable property within the county, conferred a power to levy a tax of twenty cents upon each hundred dollars of the gross amount of the sales of merchandise. The authority was claimed on the ground that the State revenue law assessed a tax on the gross amount of sales of merchandise, thereby constituting such sales taxable property. It was held, that every subject of taxation, under the State laws, cannot be considered as embraced by the terms, "taxable property," employed in the special act; and that, in various sections of the general revenue law, the distinction between property made liable to taxes, and other subjects of taxation, is clearly drawn. It is said: "A tax upon the gross amount of sales of merchandise, under § 391 of the Code, is not a tax upon the goods themselves, or the fruits of the sale, but upon the business or act of selling. This is not, then, a property or income tax, but an occupation or privilege tax, the amount being regulated by the extent to which the privilege has been enjoyed." Property, when employed in connection with the assessment and levy of taxes, had thus received a judicial interpretation, which, we must presume, was in the contemplation of the framers of the organic law.

Not only were the provisions of the Constitution adopted in view of the judicial construction placed upon the meaning of "property" as used in the revenue laws several years previously, but the special matter of consideration was the necessity and expediency of restraining the power to tax, as conferred by the general grant of legislative powers. The convention was advised that, independent of special restrictions, the taxing power extends to "person or property or possession, franchise or privilege, or occupation, or right," and reaches every source of revenue and subject of taxation within the jurisdiction of the State, only limited by public purposes, and only restrained by the protection guaranteed to private rights against oppression; and that all these sources and subjects of taxation had been and were resorted to. Property always had been and was the main reliance for raising revenue. apprehended evils and dangers of oppressive and arbitrary taxation were especially directed to this subject, property, tangible and visible, capable of being reached, and easily confiscated. The desideratum was the protection of the property of

The

the citizen against forced contributions, or legislative plunder. Assessment in exact proportion to value is the mode and means of protection, with an added limitation on the rate of taxation. Hence, the limitation in the Constitution of 1865 is extended in the Constitution of 1868 from lands to property, as embracing the subjects of ownership, whether real or personal, and the same laws were brought into the present Constitution without any modification or change. With a knowledge of the various subjects of taxation; of the well-defined distinction between property, when made liable to taxes, and other subjects of taxation; and that, among such other subjects were occupations, privileges, business and licenses, which, in the nature of things, are incapable of determinate value, valuation was adopted as the basis and measure of assessment. The limitations, by their terms, signify an intention that the provisions shall be only applicable to property, the value of which is capable of definite ascertainment by the officer, whose duty it is to make the assessment; and that all other subjects of taxation should be excluded from their operation. The language is: "All taxes levied on property in this State, shall be assessed in exact proportion to the value of such property." The terms are restricted to property, as a species of the genus, "subjects of taxation." The context shows that the word is employed in its usual and ordinary meaning, designating the thing owned, in the same sense in which it was generally used in the sections of the revenue laws, relating to the assessment and levy of taxes. The legal and logical sequence of the position of appellant would be, that the limitations operate to prohibit the levy of taxes on any subject not susceptible of determinate value.

It is contended, that if the word "property," as used in section one of article eleven, be construed as not synonymous with "subjects of taxation," the terms "taxable property," as used in section four of the same article, include any subject which can be taxed; and that the section forbids a greater rate of taxation on any subject than three-fourths of one per cent. If the terms of the section had been general, prohibiting a greater rate on any taxable property, without qualifying words, there would have been much force in the argument of counsel. But here, also, we find valuation constituting the basis on which the prohibition as to the rate rests, and by which it is determined. In Lott v. Rose, supra, these words were construed. It is said: "Where the words 'taxable property' occur in an independent act, it would seem that they should be understood in the sense of things taxed which are susceptible of ownership or possession, unless there is something in the context which affixes to them a different meaning, or unless the plain object of the law will be defeated if they are not held to cover subjects of taxation which are not property in the ordinary sense."

If so construed when employed in an independent act, a fortiori, such should be the construction when used in a section composing, with others, the articles of the Constitution relating to the subject of taxation, all the sections of which, being in pari materia, should be construed together. The framers of the present Constitution, expeririencing that the limitation in the one preceding, requiring taxes levied on property to be assessed in proportion to value, was ineffectual to prevent oppressive taxation, connected therewith a prohibition as to the rate of taxation on such valuation.

It may be considered that the gross receipts from business are property in its strict meaning. In such sense it was undoubtedly employed in the majority opinion in State Freight Tax, 15 Wall. 284; the authority of which is weakened by the dissenting opinion, in which it was said, that the tax on gross receipts of railroad companies is a tax for the privilege of transportation. In Lott v. Rose, supra, it was held that the tax on the gross amount of sales of merchandise, which are gross receipts, is not a property or income tax, but an occupation or privilege tax, the amount regulated by the extent of the business done. In Board of Revenue v. Gas Light Co., 64 Ala. 269, and in State v. Board of Revenue, 73 Ala. 65, the tax was imposed on the net income, and not on the business. The money, held and owned by the company, as the net result of the business, was the subject of taxation. An income tax stands on different principles; its value is determinable; and the rules governing such tax are inapplicable to a tax on gross receipts. One of the recognized modes of taxing business is a tax on the gross receipts, which generally are not regarded as property for taxing purposes. State v. P. W. & B. R. R. Co., 45 Md. 361; Phil. Con. Ins. v. Commonwealth, 98 Penn. St. 48; Sacramento v. Crocker, 16 Cal. 120; Warring v. Savannah, 60 Ga. 99; Winby v. Girardy, 31 La. Ann. 382. Taxable, as used in the fourth section, qualifies and designates property, not which it may be in the power of the legislature to make liable, but which is made liable, to taxation. The value of such property must be determined, before it can be ascertained that the rate of taxation imposed exceeds the rate limited by the Constitution. By what measure or criteria can the value of business be ascertained, which so largely depends upon the vigilance, energy and skill, exercised in its prosecution? The gross receipts constitute no measure of value, for they may be large, and yet the business be valueless, by reason of losses, misfortune or mismanagement. Business, though made a subject of taxation, not being capable of determinate value, is not taxable property, in the meaning of the terms employed in the constitutional limitation of the rate of taxation.

It is further insisted, that the section of the revenue law under consideration is violative of the Constitution, in that the rule of equality and uni

formity is disregarded, by putting an arbitrary value on the gross receipts of telegraph companies and a different value on the gross receipts of other kinds of companies. The proposition as stated in the argument of counsel is, "when income or gross receipts are taxed, everybody that is taxed in this State, must be taxed alike." The fallacy of the proposition consists in the assumption that the tax on gross receipts is levied by a standard of valuation, instead of by the character and extent of the business. Whilst there is no provision of the Constitution, commanding in terms, equality and uniformity, the principle should underlie and regulate the provisions of every law imposing public burdens and charges. It is not contraverted, that the taxing power may select the subjects of taxation, and constitutionally classify them. Taxes should be imposed on any subject in just proportion to the benefits and protection which such subject receives more than other subjects of taxation. The rule of uniformity does not require that all subjects be taxed, nor taxed alike. The requirement is complied with when the tax is levied equally and uniformly on all subjects of the same class and kind. It extends to the class upon which the tax shall operate; that is the taxation as to telegraph companies shall be uniform as to all such companies. Different occupations may be taxed at different rates, and some may be altogether exempted; and the requirement of uniformity is not infringed, if the various classifications include all occupations similarly circumstanced and of the same kind. Moog v. Randolph, 77 Ala. 597; State Railroad Tax Cases, 92 U. S. 575; Worth v. Wil. & Wel. R. R. Co., 13 Am. & Eng. R. R. Cas. 286; County of San Mateo v. So. Pac. R. R. Co. 8 Am. & Eng. R. R. Cas. 1; Cooley on Taxation, 170. The tax complained of may be onerous; and apparently unequal with the tax levied on the business of other corporations or companies. This is a matter submitted to the discretion and judgment of the legislature, and their conclusion must be regarded as conclusive. remedy, in such case, is the ballot box. The courts cannot interfere unless an illegal or unauthorized exaction is attempted.

The

A construction, which limits the tax to gross receipts derived from business done between points, both of which are within the territorial limits of the State, is more restrictive than the words and purpose of the statute import. The legislature knew that the appellant company operated extensive telegraph lines from places beyond, into and through the State, and intended to make the tax commensurate with the benefits and protection received from the government. Receiving messages at offices located in the State, for transmission, and transmitting them without, is business done in this State, though the service may not be complete until the delivery to the sendee at some place beyond its boundaries. The statute does not purport to tax gross receipts not collected in Alabama, but by fair interpretation,

includes all receipts derived from business done in this State, and actually received here, though the message may have to be delivered, at, or may be sent for delivery from, some office without the jurisdiction of the State. Though thus construed, the statute is not an unauthorized interference with inter-State commerce. This question is fully and ably considered and discussed in the following cases. W. U. T. Co. v. Richmond, 26 Gratt. 1; W. U. T. Co. v. State, 55 Tex. 314 W. U. Tel. Co. v. Mayer, 28 Ohio St. supra; T of Mobile v. Leloup, 76 Ala. And is expressly decided in respect to a tax on the gross receipts of railroad companies, though consisting in part of freights received for transportation of merchandise from one State to another State, or into the State from another, in State Freight Tax Cases, 15 Wall. 284; Osborne v. Mobile, 16 Wall. 479. Further discussion would be superfluous. Affirmed.

NOTE. In addition to the authorities in the text upon the meaning of the word property in tax laws, we may cite the following in which, in Maine, a tax upon franchises, rolling stock, and fixtures; in Massachusetts, a tax on savings banks on account of their depositors; in Pennsylvania, on coal companies according to the quantity mined; in Ohio, upon gas companies to defray the salary of a public inspector of gas meters; in Georgia, on the privilege of carrying on business; in Texas, on ten-pin alleys; in Wisconsin, on gross earnings of plank-road and railroad companies, were held to be taxes on franchises or occupations, as the case might be, and not on property, although the constitutions of all these States required taxes to be "equal" or "uniform," or "proportioned " or "ad valorem." 1

A few exceptions, real or seeming, to this course of decision are to be noted. New Hampshire laid a tax on railroad expressmen on their gross receipts, or according to the number of miles run, which her courts put aside as at variance with the constitutional prov sion requiring "proportional and reasonable assessments." A North Carolina statute formed the railroads of the State, for purposes of taxation, into three classes, according to the exemptions in their charters. Companies enjoying immunity from taxation on their shares of stock were taxed on their real and personal property, those exempted from taxation on real and personal estate, were reached through 'heir franchises, and so forth. But the court overthrew the act, declaring that the uniform rule" demanded by the Constitution in taxing trades, professions and incomes, required those pursuing the same vocation to be treated alike.

In Kansas, a tax was imposed upon railroad companies to meet the expenses of the railroad commission, which exercised oversight of all common carriers. The tax was held to be bad, as being laid upon railroads only and not upon all common carriers.2

As stated in the text, the requirements of "uniform

1 State v. M. C. R. R. 74 Me.376; Com'th v. Saving Bank, 5 Allen, 428; Coal Co. v. Com'th, .9 Penna. St, 100; Gas Co v. State. 18 Ohio St. 237; Ins. Co. v. Augusta, 50 Ga. 510; State v. Bock, 9 Tex. 369; M. & M. R. v. Waukesha, 9 Wis. 449. The rule was reversed in State v. R, R. 11 Wis. 34, and returned to in W. C. R. R. v. Taylor Co. 52 Wis. 37. 1 State v. Express Co., 60 N. H. 219; Worth v. R. R. 83 N. C. 291; Railroad v. Howe, 32 Kansas, 737.

ity," "equality," or other like words, are complied with when the law is "uniform as to the class upon which it operates," and requires those in the same vocation to be treated alike.4

As Justice Miller illustrates it: "Inn-keepers may be taxed by one rule, ferries by another, railroads by another, provided, the rule as to inn-keepers be uniform as to all inn-keepers," and so as to the others.5

Not only is classification consistent with-it is necessary to uniformity and equality of taxation.6

The Kansas decision now becomes clear. The railroad commission law included all common carriers, and the tax for the support of the commission should have included all common carriers and not railroads only. The New Hampshire case must be admitted to be contrary to the law as laid down in the text, and followed in this note. It may still be remarked, however, that, by the wording of the law, the tax was imposed on railroad expressmen-that is, on express companies doing business on railroads, and not on all expressmen, although this fact attracted little comment in the opinions of the court. The law appeared to be aimed at one company which enjoyed an almost monopoly in the express business of the State.

But classification in taxation, we think may proceed still further, and those in the same calling be sub-divided, if only the case of each class be the same. Liquor sellers are in the same calling, but a tax on licenses may be graduated according as the tavern is in a locality more or less favorable for profits.7

A tax on the Police Gazette, Illustrated Police News, and other illustrated publications of like character" has been held to be uniform, since it exempted no publications of that class.8

This case stands, however, on another ground alsobecause taxation may be used as a means of discouraging public vice.

The principle that legislation may, without violating the canon of uniformity and equality, discriminate among those in the same calling, if their circumstances be unlike, has the sanction of our highest tribunal. The Constitution of Iowa requires that her laws be of "uniform operation." A Granger statute classified railroads according to the business done, and imposed a separate tariff of rates on each class. A class might include but a single company. To the objection that this was unequal legislation, the Supreme Court, through C. J. Waite, replied: that the act granted to no railroad any privileges or immunities which upon the same terms did not belong to any railroad coming into any class, it had all the immunities belonging to that class.9

na

True, this case was not one of taxation, but we apprehend that the rule of equality in legislation is a general one, and the matter of taxation only one of its applications.

Perhaps we may now reconcile the last of the three, at first sight, discordant cases, which have been noted.10 If lowa could classify her railroads by the value of business done, why could not North Carolina marshall her's by their immunity from one or another kind of taxation? May not the distinction be that in the former case the State took and classified the roads as she found them, while in the latter case the conditions upon which the classification was made, came from

3 Const. Ill. State R. R. Tax Cases, 92 U. S. 612.

4 Worth v. R ilroad, supra.

5 State v. R. R. Tax Cases, supra.

6 Agnew, C. J. Com❜th v. Coal Co., supra.

7 East St. Louis v. Wehning, 46 Ill. 392.

8 Thompson v. State, 17 Tex App. 253.

9 C. B. & Q v. lowa, 91 U. S. 155.

10 Worth v. Railroad, supra.

the State's own act? The State could hardly extend a chartered immunity in one hand and with the other wrest away a tax laid on account of that very immunity. Such a basis of classification, moreover, might well be inequitable in itself.

As to inter-State commerce, the State Freight Tax Cases expressly decide, as stated in the principal case, that a tax on gross receipts, is not an unwarranted interference with inter-State commerce. The decision applies equally to telegraphs, which as instruments of commerce are within the commercial clause of the Constitution.11

Philadelphia, Pa.

CHARLES CHAUNCEY SAVAGE.

W. U. Tel. v. A. & P. Tel. 5 Nev. 102.

RES JUDICATA-OBITER DICTUM-EQUITY -PLEADING-AMBIGUITY — CONSTRUCTION-RIGHT OF WAY.

ALMY V. DANIELS.*

Supreme Court of Rhode Island, May 13, 1886.

1. Where, in a former action, the bill was dismissed, on the ground that no contract was proved for a private way over the strip of land in dispute,as alleged in the bill; yet, as the question as to the construction of the deed, which conveyed testator's interest in the gangway, or street, in question, was raised and fully argued in the case, although it was not strictly necessary for the court to pass upon the question, the construction put upon the deed must be held to be res judicata.

2. Where a question presented by a bill in equity is urged and relied upon in the argument, and passed upon by the court in its opinion, it cannot with reason be said that the point was not involved, and that the opinion of the court on the question is obiter dictum.

3. Where a grant is somewhat ambiguous in language, or by the surroundings and appellations of the subject matter thereof it is not entirely clear what was intended to be included therein; in order to aid in its construction, parol evidence is admissible, without infringing the rule that parol evidence is not admissible to vary the terms of a written agreement.

4. Where plaintiffs and defendant were tenants in common of a strip of land, and defendant has absolutely excluded plaintiffs, against their objection, from all use and benefit of one-half part thereof for many years, and the remainder is and has been occupied by both parties as tenants in common, plaintiffs are entitled to an account.

TILLINGHAST, J., delivered the opinion of the

court:

This is an action of account brought under the provisions of Public Statutes R. I. 236 (see Knowles v. Harris, 5 R. I. 402, for the construction of this statute as distinguished from that of 4 Anne, chap, 16, § 27), by the executors of Humphrey Almy, deceased, against the defendant, who, it is alleged, was a tenant in common with

*S. C., 2 New England Reporter, 615.

the plaintiffs' testator in his lifetime of a certain strip of land, forty by thirty-six feet, lying on the southerly side of Custom House street, in the City of Providence.

The case was tried to a jury at the last October term of this court, resulting in a verdict for the plaintiffs for an account by direction of the court. The defendant now petitions for a new trial upon the ground that certain rulings of the judge presiding at said trial, and particularly the one directing a verdict for the plaintiff, were erroneous.

The first contention which the defendant makes is, that the plaintiffs' testator had no title to the premises in question, because he in his lifetime, by deed dated June 21, 1860, conveyed all his right, title and interest therein to one Lewis P. Mead, which title, by sundry mesne conveyances, has come to him, and that he is not the sole owner of said premises.

In order to prove their title, the plaintiffs, after introducing a number of deeds bearing thereon, offered the plat and papers in Almy v. Daniels,an equity suit between the same parties respecting the same strip of land, tried and determined in this court in 1875 (see Almy v. Daniels, 11 R. I. 250), together with portions of certain depositions taken and used in the trial of said cause to aid the court in the construction of said deed. The defendant's counsel consented to the offering of this testimony, but objected to its competency to explain the deed, and contended that it did not explain the deed.

The plaintiffs contended at the time of the offering of said evidence, that this deed from Almy to Mead had already been judicially construed by the court in the equity suit referred to, and that the question was therefore res judicata. The defendant contended, however, that the construction put upon said deed in said case was mere obiter dictum. Upon a careful examination of that case we find that the title of the plaintiffs' testator to the land in question was directly involved therein. The defendant then claimed precisely what what he now claims, viz.: that by this deed the plaintiffs' testator "conveyed all his interest in the gangway or street to Mead, which by sundry mesne conveyances has come to him."

The bill asks "that the deed be construed to apply only to such interest in the street as was conveyed to the complainant by Bailey; or, if the court do not give such construction, to reform the deed, as it was a mistake which arose from the fact that the scrivener copied the language of Bailey's deed, not knowing that Almy had any other interest in the street than that mentioned in said deed." The opinion shows that the question as to the proper construction of said deed was "raised and fully argued in the case," and that thereupon the court decided that this strip of land is held by the complainant and defendant as tenants in common. And although it was not strictly necessary for the court to pass upon this question, as the bill was dismissed on the ground that no