CHAPTER XIX.

MUNICIPAL TAXATION.

It is proposed, on this branch of the subject, to treat of taxation by all the subdivisions of the State, whether they be cities, counties, townships, or towns, as they are called in some of the States, school districts, or special districts created for a local purpose, as levees, or other matters of local benefit to the particular district.

§ 128. The Source of their Power and its Limits.-In the State alone inheres the power of taxation. The political subdivisions of the State, made for the purpose of more efficiently administering the affairs of State, have no such inherent power; they have such power only as is delegated to them. The nature of all of these subdivisions of the State is the same; whether it be the city with its million of inhabitants, or the school district in a remote part of the State, with a few hundred inhabitants, all its powers are derivative; it has such powers as are delegated by the legislature, and no more. To ascertain these powers, we must look to the statute delegating the powers. This is to be the guide to direct us; this is our chart in discussing municipal powers, and this makes the distinctive difference in the discussion of questions as to the power of taxation as applied to States and municipal corporations. The Constitution of a State is not the source of the power of the legislature to tax. It is merely a limitation on a power inherent in the legislature. But the charter of a municipal corporation, the statute defining is powers, is the source of its power to tax. to tax. It has such power on the subject as the statute gives, and no more. The purpose of the local tax is local benefit. The local government can administer the affairs of its locality more advantageously than can be done by the State, and therefore the power to tax is given for the purposes of such local government.

1 Ante, § 27, and cases cited; § 20, and cases cited; Stetson ". Kempton, 13 Mass. 272; Daily v. Swope, 47 Miss. 367; Langhorne v. Scott, 20 Gratt. 661. Bd. of Comm'rs of Laramie v. Bd. of Comm'rs of Co. of Albany, 13 Albany Law Jour. 229, Oct. Term, 1878, Sup. Ct. U. S.; s. c. 2 Otto, 307, contains a very full and able discussion of the powers of municipal corporations, and cites many authorities. Thomson v. Lee Co. 3 Wall. 330; Rogers v. Burlington, 3 Wall. 663, 668.

This power must be plain and express;1 it cannot be gained by prescription, no length of time justifies it, it originates in the legislative will, declared by express statute, and it must appear in the statute by express words or necessary implication. When the charter confers power to tax all real and personal estate, it cannot impose an income tax.' The power to levy a tax to light streets does not give the power to add to the expense of the improvement a percentage for the collection of the tax, nor does the power to levy a tax for any purpose, authorize the imposition of a tax for the percentage for collection, unless it be given by express words. The power to tax all property in the county, at a rate not exceeding twenty cents on the value of one hundred dollars, does not confer the power to tax the gross sales of merchan. dise. The power to regulate and improve the streets, alleys and sidewalks, does not include power to levy local assessments to pay for such improvements. The powers to levy general taxes and to levy local assessments are separate and distinct powers.8 The power to impose taxes cannot be deduced from what is called the general welfare clause in the charter of a city, such as "the power to make all such rules, by-laws and regulations respecting the police of said city, as shall appear to them requisite and necessary for the security, welfare and convenience of the city, and the preservation of health, peace, order and good government within the same." This clause did not confer the power to tax liquor dealers by a license tax.10 Nor does the power to "promote the peace, good order, benefit and advantage of the corporation, and to assess such taxes as are necessary for carrying the same into effect," authorize the corporation to assess a tax in aid of a railroad to be run near the town. There must be a special power for such special tax to aid in an object not within the general purposes of such local government." The power to tax must be express. Municipal corporations have no implied powers of taxation; they have only such as are granted. The power "to levy and collect taxes, not

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1 Caldwell. Justices, 4 Jones Eq. 323; Washington Avenue, 69 Penn. St. 352; Philadelphia v. Flanagen, 49 Penn. St. 21; Ashville v. Means, 7 Ired. 406; Mays v. Cincinnati, 1 Ohio, N. S. 268.

Ham v. Sawyer, 38 Maine, 37.

Howell v. City of Buffalo, 15 N. Y. 512; Bennett v. City of Buffalo, 17 N. Y. 383; State v. Jersey City, 2 Dutch. 44.

Jones v. Cincinnati, 18 Ohio, N. S. 318..

Bucknall v. Story, 36 Cal. 67; People v. Todd, 23 Cal. 181.

'Lot v. Ross, 38 Ala. 156.

"Ashville v. Means, 7 Ired. 406.

8 Fairfield v. Ratcliffe, 20 Iowa, 396.

10 Ex parte Burnett, 30 Ala. 461.

11 McDermot v. Kennedy, Brightly (Penn.) 332.

12 State v. Shortridge, 56 Mo. 126.

exceeding one per cent., on all property of citizens of the city," and "to pass ordinances for paving and keeping in repair the streets, lanes and alleys," confers no power to assess the whole expense of improvements of the streets, on owners of abutting property benefited, nor does it confer the power of taxing by local assessment.1 So the power to remove obstructions and widen and deepen public waters, does not authorize the city to levy local assessments for deepening the harbor of the city; and it is even said that the power to subscribe for the stock of a railroad does not include the power to levy a tax to pay for the stock-that the power to tax will not be implied. When the power is given to tax certain avocations, and "all other avocations, trades or professions," the general words are restricted in their meaning by the particular words going before. Authority "to license auctioneers, grocers, merchants, retailers, hotels, artists, agents, real estate agents, brokers, &c., and all other business, trades, avocations. and professions whatever," does not include attorneys at law.1

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These illustrations show with what rigor the courts adhere to the doctrine that municipal corporations have only such powers of taxation as are plainly conferred by the charter. And when the power to tax is admitted, it must be strictly pursued, and all the conditions. precedent and subsequent must be fulfilled in the exercise of the power. In local assessments for streets, the failure to show the consent of the owners,5 the assessment to one not the owner, under the authority to assess to "owner or person unknown," or in assessing damages and benefits for opening a street, the failure of the roll to show the damage, are fatal defects, and are good defenses to the party assessed. And when the statute required in street assessments, that notice of the filing of the roll should be by publication for six days, it was construed to require six publications on six different days, excluding Sunday. Whatever restrictions are placed on the exercise of the power must be followed. That it should be necessary to follow the mode prescribed, would seem to be a necessary corollary from the proposition that the power is a delegated one; it may be delegated

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1 Annapolis v. Harwood, 32 Md. 471.

3 Burnes v. Achison, 2 Kansas, 107.

2 Wright v. Chicago, 20 Ill. 252.

St. Louis v. Laughlin, 49 Mo. 559; State v. Smith et al. 31 Iowa, 493. Insurance agents, Butler's Appeal, 73 Penn. St. 448. In this latter case, the expression, “On bowling alleys and billiard tables *** and also auctioneers or other vendors of merchandise, or articles by outery, *** and all other places of business or amusement conducted for profit," was held not to apply to merchants, bankers, and brewers, and that the phrase "other places of business" includes only places similar to bowling alleys and billiard

tables.

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Henderson v. Baltimore, 8 Md. 352.

Chicago v. Wright, 32 Ill. 192.

Taylor v. Downer, 31 Cal. 48.

8 Scammon v. Chicago, 40 Ill. 146.

in such manner as to its exercise as the legislature may direct. The power to be exercised is the power as delegated, with its restrictions.1 In the language of Judge Field, "The power must be exercised for the purpose designated; it is limited to the objects to be accomplished, to the sphere of action prescribed by the charter. If it be given for the construction of a city building, it cannot be exercised for the construction of a city railroad; if it be allowed for the establishment of a public library, it cannot be exerted for the opening of a public market; if it be conferred to enable the corporation to borrow money, it cannot be used to enable the corporation to lend money or to lend its credit." In this case the court held, that the authority "to borrow money for any public purpose" was properly exercised by issuing the negotiable bonds of the city, and their delivery to the railroad to which it had subscribed. The courts of Pennsylvania sustain this view. The minority in the case of Rogers v. Burlington, regarded the transaction as a lending of the bonds of the city, and not within the power granted. The bonds, on their face, purport to be issued in pursuance of a resolution of the council "to issue and lend" the bonds of the city. This view is sustained by the New York courts, where the authority to borrow money to be paid to a railroad to aid in its construction, did not authorize the officers of the town to deliver to the company the bonds of the town in payment for stock for which the town was authorized to subscribe. In view of the large number of judges dissenting in Rogers v. Burlington, the decisions contrary to the view of the majority of the court on this point, and the fact that the decision is in conflict with the general principle that the authority of municipal corporations to tax must not only be plain, but that nothing is to be presumed or left to implication, and that the authority must be strictly pursued, this case cannot be considered as binding authority, even in the United States courts.

The doctrine that the power must be strictly pursued is one that is firmly established, notwithstanding the doubts which have arisen as to its application to a particular case or cases, such as those represented by Rogers v. Burlington. The followinge ases will illustrate more fully the principle. The power to tax money or credits will not be sustained from the general power to tax real and personal prop

Weston v. City of Syracuse, 17 N. Y. 110; Ketchum v. City of Buffalo, 11 N. Y. 356; Rogers v. Burlington, 3 Wall. 654, 666.

23 Wall. 669.

3 Middleton v. Alleghany Co. 37 Penn. St. 241; Reinboth v. Pittsburgh, 41 Penn. St. 278.

43 Wall. 655.

'Gould v. Town of Stirling, 23 N. Y. 458.

erty, it must be express;1 nor where such general power is given to a parish, will it be allowed to impose a tax of ten dollars each on all vessels passing up the Bayou of St. John in that parish, whenever it was necessary to raise the portcullis of the bridge across the bayou.* If the objects are enumerated in the charter, those named can be taxed and no others.3

Where the charter directed that the collection of the tax should be by the marshal of the city, and also gave power to the city to pass ordinances as to the mode of assessing and collecting the tax, an ordinance authorizing the city attorney to collect the taxes was declared void. So where by an act of Congress unimproved lands are to be sold for taxes, without reference to the exhaustion first of the personal estate of the owner, an ordinance of the city of Washington imposing a condition on the sale of such lands, that the personalty should first be exhausted is void. A city having the power to tax land cannot exempt the improvements on the land from taxation; the improvements are included in the land. The power to exempt from taxation, like the power to tax, must be specially conferred; it is not included in the power to to tax, for it is evident if the corporation can exempt from taxation at all, under the general power to tax, there would be no limit to such power, and whole classes of property might be exempted, so that the power as actually exercised might be on a class of property entirely different from that contemplated by the charter."

$ 129. Special Phrases in Charter-Limit of Rate Omission to tax objects enumerated.-The power to tax "according to law" refers to the general tax law of the State existing at the time when the assessment of the tax is to be made and enforced, and the power to assess "all taxable property" is to be construed with reference to the State law, but it is not restricted to property taxable by the State at the date of the charter, but property taxable by a subsequent act becomes taxable by the corporation. In such cases, when the charter refers to the general law of the State to define or regulate the power

1 Pullen v. Commissioners, 68 N. C. 451.

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Rabassa v. Mayor, 1 Martin (La.) 484; 3 Id. 218.

* Harper v. Elberton, 23 Ga. 566; Municipality v. Johnson, 6 La. Ann. 20.

Placerville v. Wilcox, 35 Cal. 21.

Thompson v. Lessee of Carroll et al. 22 How. 427, 435.

Fitch v. Pinckard, 4 Scam. (Ill.) 69.

Hazlett v. Mount Vernon, 33 Iowa, 229; Weeks v. Milwaukee, 10 Wis. 242; Mack v. Jones, 1 Foster, 393; State v. Addison, 2 South Car. 499.

8 The Ontario Bk. v. Bunnell, 10 Wend. 186.

City of Buffalo v. Le Couteux, 15 N. Y. 451.