2. They may be intended to discourage trades and occupations which may be useful and important when carried on by a few persons under stringent regulations, but exceedingly mischievous when thrown open to the general public and engaged in by many persons. An example is the heavy tax imposed in some states and in some localities of other states on those who engage in the manufacture or sale of intoxicating drinks. Two purposes are generally had in view in imposing such a tax: to limit the business to a few persons, in order to more efficient and perfect regulation, and also to produce a revenue. As no one will pay the tax who does not expect to be reimbursed the expense from the profits of sales, it is obvious that the heavier the tax the fewer can afford to pay it, and it may be made so heavy that no one can afford to pay it, and then it becomes prohibitory. A tax laid for the double purpose of regulation and revenue must be grounded in both the police and the taxing power; but the grant of a power to tax would not authorize the imposition of a burden in its nature and purpose prohibitory.1

to tax involves the power to destroy." And again, "if the right to tax exists, it is a right which in its nature acknowledges no limits. It may be carried to any extent within the jurisdiction of the state or corporation which imposes it, which the will of such state or corporation may prescribe." Weston v. Charleston, 2 Pet., 449. The learned Chief Justice in these cases was arguing against the existence of the power; and the idea he expresses so forcibly is that the power to tax is so vast, and rests upon reasons which at times are so imperative that it may be exercised again and again, as the exigencies of the state may demand, until the property taxed is exhausted or the privilege taxed can no longer be exercised. This statement has abundant illustrations in his. tory, of people absolutely impoverished by taxation, and even, in individual cases, sold into slavery because they could not meet the demands of the state upon them. It may justly be questioned, whether this strong statement, which was put forth as a defense against an injurious tax, will fairly justify an affirmative exercise of power that has not revenue in view, but is only called a tax in order that it may be employed as an instrument of destruction. In other words, whether the unavoidable incident to the exercise of a power to demand and collect revenue, can lawfully be the inducement to the exercise of the power when revenue is not contemplated or sought.

1So held in Ex parte Burnett, 30 Ala., 461. The early case of State v. Doon, R. M. Charl., 1, affirmed the right to levy a tax of $1,000 on faro tables for the purpose of prohibition, though the payment of the tax would not legalize the use of the tables.

Taxes in kind. Taxes are generally demanded in money, and any tax law will be understood to require money when a different intent is not expressed.1 But if the condition of any state, in the judgment of its legislature, shall require the collection of taxes in kind—that is to say, by the delivery to the proper officers of a certain proportion of products — or in gold or silver bullion, or in anything different from the legal tender currency of the country, the right to make the requirement is unquestionable, being in conflict with no principle of government, and with no provision of the federal constitution. Instances of taxes in kind occurred in the colonial period,2 and statutes requiring state taxes to be paid in gold and silver, to the exclusion of legal tender treasury notes, have been fully sustained in several of the states.s Labor is sometimes required as a tax, but such requirement has usually been confined to the labor needed to keep the highways in repair, and it is a peculiar tax, to some extent at least in the nature of a police regulation; and the ordinary tax regulations do not embrace a burden of this nature, except as it may be expressly named.1

'Amenia v. Stanford, 6 Johns., 92; Bryan v. Sundberg, 5 Tex., 418; Judd v. Driver, 1 Kan., 455.

Lane County v. Oregon, 7 Wall., 71; Williams's Case, 3 Bland Ch., 186, 255; 2 Rives' Life of Madison, 146. An early tax by the French government in Canada was of a certain proportion of all the beaver skins and moose hides. Parkman's Old Regimé, 302.

Perry v. Washburn, 20 Cal., 318, 350; State Treasurer v. Wright, 28 Ill., 512; Trenholm v. Charleston, 3 S. Car. (N. S.), 347, 349; Whittaker v. Haley, 2 Oregon, 128; Lane County v. Oregon, 7 Wall., 71. It has been decided that a state cannot compel state script to be received in payment of county, school and district taxes; it not being money, and the creditors of the municipalities not being compellable to receive it in payment. Wells v. Cole, 27 Ark., 603.

4 In Sawyer v. Alton, 3 Scam., 127, 130, a provision of the constitution that "the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession," was held not to prevent the levy of a poll tax payable in labor. In Town of Pleasant v. Kost, 29 Ill., 490, 494, a highway assessment on property, payable in labor, was held not to be in the proper sense a tax. And see Fox v. Rockford, 38 Ill., 451; State v. Halifax, 4 Dev., 345. In Overseers of Amenia v. Overseers of Stanford, 6 Johns., 92, 93, where the ques tion was whether one who had worked out a highway poll tax had gained a

Taxes not debts. Taxes are not debts in the ordinary sense of that term, and their collection will in general depend on the remedies which are given by statute for their enforcement. Where no remedy is specially provided, a remedy by suit may fairly be implied, but when one is given which does not embrace an action at law, a tax cannot in general be recovered in a common law action as a debt.1 Taxes are not demands against which a setoff is admissible, their assessment does not constitute a technical judgment, nor are they "contracts between party and party, either express or implied; but they are the positive acts of the

settlement under a statute which made the settlement depend on the payment of a tax, it is said, "Taxes, in the popular and ordinary sense of the term (and in that sense laws are generally to be read), mean pecuniary contributions; and when the word paid is added by way of defining it, the sense be. comes more clear and certain." It was therefore held that a settlement was not gained by working out a highway assessment. And see Starkesboro v. Heinesburgh, 13 Vt., 215. An assessment of four dollars or two days' work on each male resident over 21 and under 60, was held to be a poll tax, and as such forbidden by the constitution of Nevada. Hassett v. Walls, 9 Nev., 387.

1 Ruddock v. Gordon, Quincy's Rep., 58; Andover Turnpike v. Gould, 6 Mass., 39, 44; Pierce v. Boston, 3 Met., 520; Crapo v. Stetson, 8 id., 393; Appleton v. Hopkins, 5 Gray, 530; Dunlap v. Gallatin County, 15 Ill., 7; Dennis e. Maynard, id., 477; Camden v. Allen, 26 N. J., 398; Webster v. Seymour, 8 Vt., 135, 140; Shaw v. Pickett, 26 id., 482; Packard v. Tisdale, 50 Me., 376; Carondelet v. Picott, 38 Mo., 125: Perry v. Washburn, 20 Cal., 318; Richards e. Stogsdell, 21 Ind., 74; McCall v. Lorrimer, 4 Watts, 351; Miller v. Hale, 26 Penn. St., 432; Lane County v. Oregon, 7 Wall., 71, 80. Compare Durant v. Supervisors, 26 Wend., 66. In Baltimore v. Howard, 6 H. & J., 383-394, it is said by Buchanan, Ch. J., that if an act authorizes a tax but gives no remedy for its collection, assumpsit will lie for its recovery. Other cases recognize the right to maintain an action for taxes, and treat the statute remedy as cu. mulative merely. See Dugan v. Baltimore, 1 Gill & J., 499; in which the court say the imposition and assessment of the tax "created the legal obliga tion to pay on which the law raised an assumpsit," notwithstanding the statute gave a special remedy. And see State v. Steamship Co., 13 La. An., 497. It has been decided in Vermont that if a tax be duly assessed against a feme sole who afterwards marries, the husband's property, including the personal property acquired by the marriage, is not liable to be distrained for the satisfaction of the tax. Sumner v. Pinney, 31 Vt., 717. Taxes do not draw interest as contracts, but only when it is expressly given. Haskell v. Bartlett, 31 Cal., 281; Himmelman v. Oliver, 34 id., 246.

Trenholm v. Charleston, 3 S. Car. (N. S.), 394; McCracken v. Elden, 34 Penn. St., 239; Pierce v. Boston, 3 Met., 520; Johnson v. Howard, 41 Vt., 122; Himmelman v. Spanagel, 39 Cal., 389.

government through its various agents, binding upon the inhabitants, and to the making and enforcing of which their personal consent individually is not required." And the law abolishing imprisonment for debt has no application to taxes, the remedy for the collection of which may include an arrest if the legislature shall so provide. The repeal of a tax law before the tax is collected puts an end to the tax itself, where no rights are reserved in the repealing act, and nothing in the act indicates a contrary intent.3

Taxation and protection reciprocal. The protection of the government being the consideration for which taxes are demanded, all parties who receive or are entitled to that protection, may be called upon to render the equivalent. The protec tion may be either to the rights of person, or to rights in property, and taxes may consequently be imposed when either person or property is within the jurisdiction. But a personal tax cannot be assessed against a nonresident, neither can the property of a non

1 Pierce v. Boston, 3 Met., 520, per Shaw, Ch. J.; Perry v. Washburn, 20 Cal., 318; Webster v. Seymour, 8 Vt., 135, 140; Johnson v. Howard, 41 Vt., 122.

Appleton v. Hopkins, 5 Gray, 530; Harris v. Wood, 6 T. B. Monr., 641.

Howe v. Starkweather, 17 Mass., 240; Fenelon's Petition, 7 Penn. St., 173; Augusta v. North, 57 Me., 392; Mitchell v. Board of Trustees, 71 N. C., 400; Abbott v. Britton, 23 La. An., 511; McQuilkin v. Doe, 8 Blackf., 581; Mount v. State, 6 id., 25; Ross v. Lare, 3 S. & M., 695. In Warren R. R. Co. v. Belvidere, 35 N. J., 584, it was decided that the tax might still be collected.

The right to tax an individual results from the general protection afforded to himself and his property. Vattel, b. 1, ch. 20. See Eggleston v. Charleston, 1 S. Car. Const. Rep., 45; Bank of U. S. v. State, 12 S. & M., 456; De Pauw v. New Albany, 22 Ind., 204.

One who is not taxed is just as much entitled to the protection of govern. ment as one who is. Every resident of the state, and every owner of property therein is liable to taxation, and it is this liability that entitles him to protection, and not the fact that he is actually taxed. Some persons are never taxed, because they do not come within any of the rules which the state has prescribed for the apportionment of its burdens. But the state prescribes these rules in the discretion of its legislature; and it prescribes them in contemplation of its obligation to give impartial protection to all persons. If one in his person, business or property comes within these rules, he must pay the tax; if he does not, he is guilty of no neglect of duty, and chargeable with no fault for not paying one. Youngblood v. Sexton, Sup. Ct. Mich., Oct. Term, 1875.

Dow v. Sudbury, 5 Met., 78; Herriman v. Stowers, 43 Me., 497; People v. Supervisors of Chenango, 11 N. Y., 563; St. Paul o. Merritt, 7 Minn., 258.

resident be taxed unless it has an actual situs within the state, so as to be under the protection of its laws. The mere right of a foreign creditor, to receive from his debtor within the state the payment of his demand, cannot be subjected to taxation within the state. "It is a right that is personal to the creditor where he resides, and the residence or place of business of his debtor is immaterial. The power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects within the jurisdiction of the state. These subjects are persons, property and business. Whatever form taxation may assume, whether as duties, imposts, excises or licenses, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured form, and in its various transmutations. And the amount of the taxation may be determined by the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained by provisions of the federal constitution, the power of the state as to the mode, form and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction." These are conceded or adjudged principles, and have ceased to be the subject of discussion or argument. Corporations, it is also conceded, may be taxed like natural persons on their property and business. But debts owing to foreign creditors by either corporations or individuals, are not the subject of taxation. The creditor cannot be taxed, because he is not within the jurisdiction, and the debts cannot be taxed in the debtors' hands, through any fiction of the law which is to treat them as being, for this purpose, the property of the debtors. They are not property of the debtors in any sense; they are the obligations of the debtors, and only possess value in the

1 That personalty may be taxed where it is, though the owner is a nonresident; see ch. III. Personal allegiance has no necessary connection with the right of taxation. An alien may be taxed as well as a citizen. See Witherspoon v. Duncan, 4 Wall., 210.

State Tax on Foreign Held Bonds, 15 Wall., 300, 319. See Oliver v. Washington Mills, 11 Allen, 265.