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account of the property and our relation to it directly. If we disregard this rationale, we may, perhaps, register an assessment where we are not entitled to levy a tax." The person to whom the assessment is made need not be the
He may be the agent, trustee, guardian, executor or administrator. This is because the property, which owes the tax by reason of being protected, has not hands wherewith to take from itself a portion of itself, to pay for protection to be accorded to the remainder. Therefore the law, following the property to get the tax, makes its demand upon whoever it finds in possession, without inquiring upon what interest the property is based. This it does, ignoring all persons beneficially interested in the title, even the owner himself. Every person,” says the statutes of New York, “shall be assessed, etc., for all personal property owned by him, including all property in his possession, or under his control, as agent, trustee, guardian, etc."
“ Thus it will be seen that for the purpose of assessment, possession is a title superior to ownership. And I now reiterate, that according to the theory of our government, a tax stands upon the just obliga tion of all property to contribute to the support of the power which protects it; but that the assessment stands upon the possession or power of the person assessed, over the property taxed. This may be further illustrated. Movables can never be out of the actual or constructive presence of some one, and, therefore, there is always a person in esse to whom the assessment may be made. But the case is very different with unmovables, and therefore, lands are often taxed and assessed by their own name and designation, and specifically sold to satisfy the specific assessment, no person's name anywhere appearing in the proceedings.
“Keeping this vital distinction between an assessment and a tax clearly in view, the mind will come by easy steps to an understanding of how it is that a tax, to a man who has no property in the State, is a tax upon his person. Process is the eye of the law. Its vision is limited by territorial boundaries. Whatever does not exist within that limit, does not, for any purpose of law, exist at all. The rich man, whose property is in Europe, and the pauper, whose property is nowbere, are then eqnal, as persons, before the law. A tax upon a pauper would be a personal tax. A tax upon the rich man is, by unimpeachable parity of reason the same. Such a tax would be a gross solecism on our system. The philosophy of our plan of volun tary political association, is that all individuals, and all the values within a community, shall aggregate into one mass all the power
which they separately contain, which sum total shall constitute a sovereignty of the whole. This sovereignty—the soul of the State, which cannot be impaired, and the State survives-reflects back upon its constituents in detail, all that it has received from them. What it receives, and what it returns, is of two kinds, as to both source and object, viz., individual service to the government, and protection to the individual from it. Thus in his individual capacity, a man is bound to perform military service, and the State by the military arm, is bound to protect him from invasion. He is bound to do jury duty, and the authorities are bound upon his demand, to provide him a jury. He is bound to aid the sheriff, and the sheriff is bound to execute process in his favor by posse comitatus if necessary. These personal services correspond to those which in feudal times, the mesne lord holding a frank tenament, owed the lord paramount. They cannot be compounded for, for their value consists in their being rendered in kind. Their performance is the only price which the citizen pays for his citizenship. The terms are not only consistent and harmonious with our general scheme of government, but are highly politic. They are a liberal invitation to all men to come and add to ours their lives, their hopes, their strength, labor and courage, that we may build up a nation. To all political privileges we admit each one by virtue of his being a man, free born and of lawful age; we ask him nothing concerning his property, unless his property asks something from us.”
Tax on Breathing.–In the time of Anastasius, emperor of the east, the capitation, or personal tax was called a tax on breathing, animarum tributum.” The same expression might still be used with great propriety to designate the personal tax which States or towns impose on their citizens for property beyond their territory and jurisdiction; for such taxes are in fact taxes on breathing, or existence in the place where a person does his breathing and not where his property is located. So long as this rule exists, there can be little doubt that people will resort to those places where breathing is made easy, free, and least expensive; neither can there be any doubt, that if the State makes breathing difficult, it will pay the penalty in loss of population and wealth. People will always be most sensitive to any obstruction to breathing.
Again, if we are to tax personal property beyond the sovereignty and jurisdiction of the taxing power by reason of the possession of the person of the owner, and for the purpose of augmenting the revenue; “why not,” says Mr. Lowrey, in the argument above referred to, carry the principle to its logical conclusion.” Why not tax real property also ? No reason can be given for a distinction, although pretexts claiming to be reasons may. One claim is as good as the other. A robber who should draw romantic distinctions between watches and purses would fail in business. If we are to be robbers in practice, let us, at least, secure some grace by honesty in our professions, and admit that what we thus take is not a tax received as the just recompense of a benefit conferred; but a compulsory levy, having its cause in our greed, and its justification in our power; and 'as these reasons are as good for a large levy as a small one, and the whole of a man's estate is greater than its part, why not take the whole ?
“Still further; if we tax a man (in New York or Massachusetts) who has come from Connecticut or England to stay a year, for the property he has left behind, why not the man who has come for a week ?” If we are to do business upon the principle that “might makes right,” would it not be a brilliant stroke to station ourselves at all the avenues of ingress to the State, and cry, “stand and deliver to the passengers ?"
This maxim, "mobilia personam sequuntur," which we call a a legal fiction, when perverted from its original and beneficent purpose, therefore, deserves no better than to be called a legal lie; and it is worthy of note also that in Rome where the fiction originated, its applicability to property was never held, according to Savigny, to extend beyond Roman territory.
From the above citations and arguments, the conclusion would seem to be inevitable, that when a State assesses property situated beyond its territory and jurisdiction, and which its laws and processes are not competent or able to either reach or protect; or, assesses one of its own citizens in respect to such property, the act has no claim to be regarded as taxation, but is simply arbitrary taking, no ways different in principle from confiscation.
EFFECT OF THE FOURTEENTH AMENDMENT ON THE POWERS OF THE
STATES IN RESPECT TO THE ARBITRARY APPROPRIATION OF PRO
It is curious to note, that prior to the recent amendment to the Constitution of the United States, there does not appear to have been any restrictions on the power of the States of the Federal Union to deal with the persons and property of their citizens in any manner it may have seemed to a majority of their voters to be expedient.
That this was so in regard to persons is evident from the fact that, prior to the thirteenth amendment to the Constitution of the United States, a large number of the States exercised without question the power of holding a portion of their population in slavery; and in the States where slavery did not exist, the abrogation of this right and the non-exercise of the power was the voluntary act of the people themselves, and might have been resumed at any time, in case a majority had so determined.
Now, while no higher privilege obviously could be claimed for property than was granted to persons, the right of the States to deal with the property of their citizens in any way they may have seen fit, was made the subject of a decision of the supreme court of the United States, in the case of Baron v. The Mayor of Baltimore, January, 1833 (7 Peters, 243). In this case the city of Baltimore, in the exercise of its corporate authority over the harbor, etc., so diverted certain streams of water that they made deposits of sand and gravel near the plaintiff's wharf, and thereby prevented the access of vessels to it. A writ of error was taken from the judgment of the Maryland court of appeals, refusing damages, to the supreme court of the United States, on the ground that this decision was in violation of the fifth amendment to the Constitution of the United States, which prohibits the taking of public property for private use without just compensation; the plaintiff contending further, “ that this amendment, being in favor of the liberty of the citizens, ought to be so construed as to restrain the legislative power of a State, as well as that of the United States. The court, however, by Chief Justice Marshall, held that this amendment of the Constitution “is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the Stutes ; which was equivalent to saying, viz., that if the several States choose to arbitrarily take or confiscate the property of any of its citizens, there was no higher sovereignty to restrain them.
At the close of the late civil war, however, when it was deemed desirable by Congress to impose some restrictions on the reconstructed States, so as to prevent the former disloyal element of their population in the event of the contingency of regaining legislative power, from dealing arbitrarily or unjustly with any class of their fellowcitizens who might happen to be obnoxious, the following clause was made a part of the fourteenth amendment, and through its adoption has become the supreme law of the land: “Nor shall any State deprive any person of life, liberty or property, without due process of law." Now the force of this amendment obviously depends upon the meaning of the last clause, “ due process of law;" and it is also clear that “due process of law” does not mean a procedure in conformity with any law which a State legislature might enact, or with any provision which the people of a State might put in their Constitution ; for if such be the interpretation of this phrase, then this clause of the fourteenth amendment referred to, would practically read as follows: “ Nor shall any State deprive any person of life, liberty or property, except in conformity with such laws as it may enact.”
The general meaning of the phrase, “due process of law," and of the synonymous expression "law of the land,” has, however, been made so often the subject of discussion and legal decision as to be in no sense a matter of doubt. Mr. Webster, in the Dartmouth College case, defined these terms as follows: “By the law of the land is most clearly intended the general law, which hears before it condems, which
proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not the law of the land.” And in commenting on this definition, Justice Cooley, in his treatise on "Constitutional Limitations," uses this language: “This definition of Mr. Webster, is apt and suitable as applied to judicial proceedings, which cannot be valid unless they proceed upon inquiry, and render judgment only after trial. It is entirely correct, also, in assuming that a legislative enactment is not necessarily the law of the land. The words,“ by the law of the land," as used in the Constitution, do not mean a statute passed for the purpose of working wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. “Due process of law", therefore, continues Mr. Cooley, after reviewing the interpretations of various other authorities, means, "such an exertion of the powers of the government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as these maxims prescribe.”
“The very idea of taxation, the very elements of the terms tax-taxation-implies that it is an imposition or levy upon persons or property in due course or order, treating all alike in the same condition and circumstances. The burden of taxation must be equalized by this mode in order to preserve its character. It is in any view taking private property for public use; and it cannot be so taken, without an