117. Subjects of taxation.-The power of municipal taxation extends over all persons and property within municipal boundaries, and in certain instances also to adjacent realty.

The law of actual situs prevails with regard to chattels. They are taxable by the municipality if they are usually kept or belong within its limits; and this is so regardless of the domicile of the owner. But goods and chattels found temporarily within a municipality are not taxable therein; as where a vessel is at a city wharf taking on freight, her situs is not there, but at the home port, or domicile of the

owner.

118. State may impose taxes.-The state, in the exercise of its sovereign power, may impose special taxes upon the municipality for governmental, but not for strictly municipal, purposes. In creating a municipal corporation and conferring upon it the taxing power, the state does not and cannot surrender its own inherent sovereignty over the people and property within the municipal boundaries. No municipal power can exist in perpetuity." The inherent power of taxation possessed by a state may be exercised by the legislature upon property within as well as without the municipal boundaries; and for any strictly governmental purpose it is conceded that the state may tax municipal property not only for general objects, but by special assessment for local improvements.

It is also generally recognized by the courts that for purely municipal purposes the municipality may

91 Meriwether v. Garrett, 102 U. S. 472, LEADING ILLUSTRATIVE CASES,

not be taxed by the state without its consent. The two leading cases in the United States representing discordant views are those commonly known as the Philadelphia City Hall Case 92 and the Detroit Park Case.93 In the former of these it was ruled that the state might compel the city to pay for the erection of "an enormous pile which surpasses the town halls and cathedrals of the Middle Ages in extent if not in grandeur"; and in the latter that the state could not compel the city to pay for the purchase and improvement of a city park. Between these divergent views of legislative control over municipal corporations is found a variety of decisions in divers states as to the legislative power to impose taxes upon a municipality, which generally recognize the doctrine above stated, but differ in its application to particular cases.

119. Express and implied power. The municipality may exercise the power of taxation expressly conferred upon it only within constitutional limitations. This doctrine is so self-evident as scarcely to need elucidation. The legislature itself can confer upon a municipality no greater measure of power than it possesses itself; and, since it can enact no valid law contrary to the constitutional provisions, it can confer upon the municipality no power to pass unconstitutional ordinances.

The municipality may levy taxes for the performance of any municipal duty imposed, or exercise of any municipal function conferred upon it by charter

92 Perkins v. Slack, 86 Pa. 270.

93 People v. Detroit, 28 Mich. 228, 15 Am. Rep. 202.

or by general law. Of the three classes of municipal powers, express, inherent and implied, it is obvious that a municipality for the purpose of taxation possesses the first within constitutional limitations, but may not exercise any under the second class. What implied power for taxation belongs to a municipal corporation is not so easy to determine. Here, however, as elsewhere, in the construction of municipal charters, the general doctrine is applied that the corporation has by implication such measure of power as is necessary to the proper execution of the charter powers expressly granted. Thus, the power to borrow money implies the power of taxation sufficient to repay the loan. The power to grade and pave streets implies the power to collect sufficient revenue to pay the expenses of the improvement. But power to make by-laws to "promote the benefit and advantage of a corporation" does not authorize it to levy a tax to pay the expense of procuring the location of a railroad through the municipality, and the power to enact by-laws necessary for the security, welfare, and convenience of the city does not authorize a tax on liquor dealers.

120. License tax.-A license tax may be imposed by the municipality only when power to do so is expressly conferred. Municipal licenses may be divided into two classes: (1) Police, and (2) revenue. A municipality may license certain occupations and forbid the exercise of the same by unlicensed persons. This is under the police power granted to the municipality; but in such case the fee to be charged against the licensee is determined by the necessary expense

connected with the police regulation. The taxing power, however, cannot be implied from the police power. And so where the sum charged for a municipal license is obviously for purposes of taxation, and not merely a license fee, the charge is unauthorized and void, unless authority to levy a license tax has been expressly conferred by charter or general legislation. The tax on occupations is upon persons pursuing such occupations within the city, whether their residence be inside or outside the corporate limits. And no discrimination can be made as between residents and non-residents. A person residing within a city cannot be taxed upon his occupation if it be pursued exclusively outside the municipality.

121. Assessment and collection.- Municipal taxes may be assessed and collected by state officers under general law, or by municipal officers thereunto authorized by the state, and appointed and directed by the municipality. The general methods of state taxation are pursued by municipalities. When municipal officers are appointed for this purpose they may discharge this duty as directed by statute or under municipal ordinances when authorized by law.

The municipality may use the tax duplicate or assessment list of the county or a special municipal assessment list may be made for the corporation according as the law may provide.

And as in case of assessments, so of collections, the duty may be performed under law either by county or municipal officers.

122. Creditors' rights. The courts may compel the levy and collection of taxes by a municipality to

satisfy municipal indebtedness. A municipal creditor having matured indebtedness against a municipality may pursue the usual methods to enforce collection by action at law, judgment, and execution; but, since all municipal property used in the performance of governmental functions is exempt from execution, such mode of collection usually proves inadequate, and the creditor finds the usual remedy at law greatly embarrassed, and oftentimes totally ineffective. Whenever this is made to appear, the courts will grant him the remedy of mandamus to enforce satisfaction by means of taxation.94

In the federal courts and some state courts a judgment is an essential prerequisite to this writ; but in many of the state courts this is not the rule; and in some the procedure admits of a judgment and mandamus in the same suit.

BIBLIOGRAPHY.

The standard work is Dillon on Municipal Corporations now in the 5th edition. A good treatise of one volume adapted to students' use is Ingersoll on Public Corporations. Other good treatises are Abbott on Municipal Corporations; McQuillin on Municipal Corporations.

94 Darling et al. v. Mayor and City Council of Baltimore, 51 Md. 1, 88 Am. Dec. 248, LEADING ILLUSTRATIVE CASES.