on all cows within the jurisdiction of the police jury, but upon cows kept by certain individuals, while other individuals may keep cows without taxation. Such a tax is not uniform.1 tax is not uniform. An act authorizing the court to assign counsel to defend poor persons, without fee or reward, has been held unconstitutional. Stuart, J.: "The law requiring gratuitous services from a particular class, in effect imposes a tax to that extent upon that class. A county is liable ex necessitate for the value of such services; the county provides for other wants of the poor, and this falls within the reason of the law. A law requiring railroads to pay a sum into the treasury in proportion to "the length of main track and branches," is void; it is not laid on income, or any franchise or privilege; and regarded as a tax on property it is not equal and uniform, or according to the value of the property. A tax on all ore mined, if regarded as a tax on property, is not uniform unless the same tax is imposed on all the property in the State.1 § 55. Arkansas and Illinois Cases as to Privileges and Road Tax.-The Constitution of Arkansas provides that "all property subject to taxation, shall be taxed according to value, &c., making the same equal and uniform throughout the State. No one species of property from which a tax is collected, shall be taxed higher than another species of property of equal value, provided the legislature shall have power to tax merchants, hawkers, peddlers, and privileges in such manner as may from time to time be prescribed by law." In 1839 an act was passed taxing keepers of billiard tables and nine-pin alleys $500 for six months, providing that no person should use a billiard table or nine-pin alley without first paying to the sheriff the tax. It was held unconstitutional,5 the court saying: "The privileges made taxable by the Constitution, are such as cannot be exercised or enjoyed by any citizen or integral part of the community, without the intervention of some statutory provision, granting or conferring upon one or more individuals the right of doing some particular thing, as the right of banking, keeping a ferry across navigable water when it is exclusive, or constructing a public road with the right of receiving tolls. Every individual may lawfully acquire and possess any species or description of property, if he does not thereby destroy or deprive 1 Orleans v. Pierre Nongues, 11 La. Ann. 740. 2 Webb v. Baird, 6 Ind. 13, 17, 19. 3 State v. South Carolina R. R. 4 S. C. 376. * State v. Cumberland R. R. Co. 40 Md. 22. But where there is no constitutional provision, a tax of one and a half cents on every ton of ore mined, is not void for inequality Weber v. Reinhard, 73 Penn. St. 370. 5 Stevens & Woods v. State, 2 Ark. 291; affi'd in Gibson v. County of Pulaski, 2 Ark. 309, and Pike v. State, 5 Ark. 204. some other person of his property, or some enjoyment thereof in which he is protected by law. The legislature cannot restrict any one from purchasing a billiard table, but may by law so regulate or restrict its use as to prevent any injury to morals or the public good. All property must be taxed according to its value, and the tax must be equal and uniform throughout the State. There must be no discrimination between different species of property." In 1840 an act was passed making the keeping of a billiard table and nine-pin alley indictable, under severe penalties. This was repealed in 1843, and an act passed making it a misdemeanor for any person to set up or keep a billiard table or nine-pin alley, at which a game shall be played. Provided, that any person who shall be fined for keeping and exhibiting such table or alley shall not again be prosecuted or fined for keeping the same table or alley for the space of one year after date of such conviction. As to the proviso in this act, it was held that the obvious design of the act was to convert a penalty into a tax, and that the legislature could not do indirectly that which it could not do directly.1 The construction given to the word "privileges" in Arkansas, at first sight appears to be different from that of all other States, and would prevent the taxation of all occupations or callings, except those in which the right is derived from legislative enactment. But the privileges in the Constitution of Arkansas are put in contrast with the occupations of merchants, hawkers and peddlers, and are evidently intended to cover something other than the privilege of exercising the occupations named, or others of a similar nature, and in this view of the matter the language of the court in that case is very pertinent: "The legislature cannot, by prohibiting the exercise of a common right to every citizen, and then allowing its exercise upon the payment of a tax, create it a privilege." The contrary opinion is expressed by the courts in Tennessee upon a similar provision of the Constitution, which gives to the legislature "the power to tax merchants, peddlers, and privileges." A tax on photographers was held valid, the court defining a privilege to be the exercise of an occupation or business which requires a license from some proper authority, designated by a general law, and not open to all or any one without such license. Road Tax.-The town of La Salle is a body politic and corporate. The city of La Salle is within its limits. A road tax was levied upon inhabitants of the city. It was held to be for a corporate purpose in 1 State v. Hanger & Bell, 5 Ark. 413; State v. Hiner, 12 Ibid. 419. the sense of the Constitution, which allows "corporate authorities to impose taxes for corporate purposes, uniform as to persons and property, within the jurisdiction imposing the same;" and that it would not have been uniform if not levied upon the inhabitants of the city.1 And in Arkansas, it was held that the charter of a city which exempts the inhabitants from the payment of a tax for the construction of roads in a county in which the city is situated, is not equal and uniform. In a case in Illinois, where the inhabitants of the city of Ipavia, within the limits of the town of Pleasant, were exempt from road tax on roads beyond the limits of the city, the exemption was held valid on the ground that the imposition of labor for such purposes is not a tax. The reason given for this decision is in direct conflict with a previous decision of that court, which held that labor required to be performed on roads was a public burden and a valid tax, notwithstanding the provision in the Constitution for taxing property according to its value and by a uniform rule. Tested by the rules heretofore mentioned,5 as to the distribution of the burden of taxation among the subdivisions of the State, to wit, that they are made for the convenience of administering the government, and may be altered at the will of the legislature, it would be a matter purely of discretion with the legislature whether the tax for roads should be imposed upon the inhabitants of a county, including the cities and towns in its limits, or whether the legislature in separating the inhabitants of the cities into distinct political divisions from the other inhabitants of the county, should place upon them the burdens peculiar to the limits of their divisions or districts, leaving the inhabitants of the rest of the county, another district, to bear their own burdens, of which the tax for roads is one peculiarly appropriate to be borne by each district for itself. The same principle applies, of course, to towns or townships, and the cities or villages in their limits. § 56. Equal, Uniform, and Ad Valorem.-The rule is, that the legislature may select the subjects of taxation in their discretion, but when they have selected the subjects, the tax must be assessed according to the value of the property. But there are several cases which announce a doctrine which is in conflict with this rule and that here- · tofore announced in § 51. The Constitution of Illinois, prior to 1 O'Kane v. Treat, 25 Ill. 587; Zanesville v. Auditor of Muskingum, 5 Ohio N. S. 589. Fletcher v. Oliver, 25 Ark. 289. 3 Town of Pleasant v. Kost, 22 Ill. 494. 4 Sawyer v. City of Alton, 3 Scam. (Ill.) 130. Ch. 3, especially § 27. Hamilton v. St. Louis Co. Ct. 15 Mo. 3; Home Mut. Ins. Co. v. City of New Orleans, 20 La. Ann. 447. 1827, provided that the mode of levying a tax should be by valuation, so that every person should pay a tax in proportion to the value of his property. An act of the legislature of that year divided lands into classes. Lands of first quality were to be valued at four dollars per acre, and taxed at two cents per acre; lands of the second quality were to be valued at three dollars per acre, and taxed at the rate of one and one-half cents per acre; lands of the third quality were to be valued at two dollars per acre, and taxed at the rate of one cent per acre. The owner of the land was required to list his land in the class to which it belonged, in the auditor's office, and the auditor was required to charge the tax annually according to the classification.1 A similar law was passed in Florida, under a Constitution requiring uniformity in taxation, and each of them was held valid." Mr. Blackwell remarks upon the Illinois cases, which were sustained on the ground of necessity, expediency, and contemporaneous construction: "If such a principle is adhered to, there is an end of equality and uniformity in the operation of the taxing power under our Constitutions, except so far as representative responsibility may secure them." The Maryland courts have announced a similar doctrine, leaving the question of whether a tax is equal and uniform and ad valorem to be decided by the legislature rather than the courts. The legislature of that State imposed a tax of a specific sum upon each county in the State, without basing the assessment upon any actual valuation of taxable property. The court held, that before such a law could be pronounced unconstitutional, it must appear clearly that the persons taxable did not contribute according to their actual worth in real and personal property, and in the absence of such evidence, they would presume that the legislature had divided the tax among the counties according to the valuation of property in such local jurisdictions, and had such evidence before them as guided their judgment in that matter. A more gross violation of the rule of uniformity and of taxation according to value can scarcely be conceived than the case in Illinois. The system is entirely arbitrary. Lands highly improved in the vicinity of large towns, worth one hundred dollars per acre, are taxed two cents per acre; lands in the interior without improvement, worth one dollar per acre, are taxed one cent; the ratio of value is one hundred to one-that of taxation, two to one. It seems, to my mind, that the simple statement of the 1 Rhinehart v. Schuyler, 2 Gilman (Ill.) 473; Bruce v. Schuyler, 4 Gilman (III.) 221. Levy v. Smith, 4 Florida, 154. Blackwell on Tax Titles, 3d ed. pp. 149, 150. 4 Waters v. State, 1 Gill (Md.) 302. proposition forces upon the understanding the conviction of its conflict with the provision requiring a uniform system of taxation according to value. And as to the rule which seems to be the basis of the Maryland decision-that the legislature is to judge of the infractions of the constitutional provisions as to the exercise of the taxing power -precisely the same principles apply, in arriving at a correct conclusion, as were used in determining whether the public purpose, in cases of taxation or a taking of private property for public use, was a question for the courts or the legislature.1 If any question is settled, both upon reason and authority, it is that such a question is one for the courts. In contrast with these decisions of Illinois, Florida and Maryland is a decision in Louisiana, that a tax of a specific sum on every given weight of cotton violates the provision of the Constitution which requires taxation to be equal, uniform and ad valorem. Cotton having many different grades, the same quantity by weight must differ in value. So a tax of one dollar on each and every horse or mule offered and sold within the city by or belonging to a horse or mule drover, is a tax on property, not ad valorem, and void.s The rule of uniformity in the Constitution does not execute itself, and therefore does not affect an assessment of taxes made under an act in force when the Constitution was adopted, and before the legis lature had passed a tax law in conformity to the rule established by the Constitution. Nor does the rule of uniformity and ad valorem apply where there is a special grant of taxing power. The Constitution of Georgia devotes to school purposes "a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess." A tax of twenty cents per gallon on the sale of whisky, brandy, &c., in quantities less than thirty gallons, was sustained under this provision. If the tax was to be uniform and ad valorem, there was no necessity for the special grant.5 $57. Corporate Authorities of Counties and Cities, Limitations as to, in Illinois.-The Constitution of Illinois provides in art. 9, § 2, that "the General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property;" and in § 5 of the same 1 Ante, § 13, and authorities cited. Livingston v. City of Albany, 41 Ga. 21. 2 Sims v. Jackson, 22 La. Ann. 440. 4 Williams v. Detroit, 2 Mich. (Gibbs), 560; Pegram v. Cleveland, 64 N. Car. 557. Kenny v. Harwell, 42 Ga. 416. |