The above was a revenue or tax case. It was essentially a tax case. Our courts reverse the rule. "The limitation is in the nature of restriction of a pre-existing power and so far as the property-owner is concerned, an exemption from taxation, and as such to be construed strictly. Assuming that the clause could with equal reason, be construed to mean, either what the plaintiff claims, or what the defendant claims it does mean (and that is the best that can be said for the defendant's claim), and it results that the plaintiff's construction (tax-bill holder) must prevail, because as to him (the contractor), representing the municipality, the clause is a restriction of a pre-existing power, but as to the defendant (property-owner) it is the grant of a new exemption." [Allen v. Kremling, 23 Mo. App. 561 at 569 bottom.]

CHAPTER 5.

THEORIES OF TAXATION.

In the different states and territories of the Union and in the United States, there is no such thing as a tax by common law; it is all by statute. We construe and apply statutes. The British Constitution is no restriction on king, lords and commons. The American constitutions restrict the executive the legislative and judicial powers. That there may be no mistake about our constitutions, they are put in writing. There are two theories on which local taxation is generally supported. The first is that it is a part of the general taxing power of the government. It is not conferred by the Constitution. It is not limited by it or by the usual bill of rights in our state constitutions; that it is a legislative power; that the courts can not control it. That in the absence of special express definite constitutional limitations in terms beyond any reasonable doubt the legislative power may tax white horses and exempt all others; that they may tax land and exempt houses. They may tax it by the acre, by the front foot or according to value; they may make the tax a personal charge only or make it a lien on land or other property. They may hold the individual personally liable with all he has and all he may ever acquire without homestead or exemptions. The power to tax is the power to destroy. The power to tax exists; that the judiciary have no power to control this exercise of legislative power; that no act of legislation levying or authorizing the levy of any tax is or can be subject to "any judicial veto" on the part of any court.

The second theory is that this tax is imposed to pay for a benefit conferred on the owner's property; that the tax is therefore no burden; that this tax is special in that it is a benefit to the person and property taxed; that the tax may be equal to or less than the benefit conferred; that the tax can never exceed the benefit and that the benefit for which the tax may be levied is special, peculiar, exceptive not enjoyed in common with other like property in the vicinity. That if the property is not benefited then this taxation is confiscation contrary to all constitutional law. We shall inquire into the second ground first.

The present Constitution of Missouri took effect November 30, 1875. Look at our constitutional history. Section 19 of article 13 (Declaration of Rights, Rev. Statutes 1825, vol. I, p. 61), Constitution of Missouri, adopted July 19, 1820, is as follows:

"19. That all property subject to taxation in this State shall be taxed in proportion to its value."

Constitution of 1865, adopted April 8, 1865 (Gen. Statutes 1865, p. 24), section 30, article 1, Declaration of Rights, is thus: "shall be" is changed to "ought to be:"

"30. That all property subject to taxation ought to be taxed in proportion to its value.'

In article 4, section 27, are a number of restric tions on the powers of the Legislature, among which is one prohibiting it from "exempting any property of any named person or corporation from taxation" by special act. Section 16, article 11, State Constitution 1865 (found in Gen. Statutes 1865, p. 43), is thus:

"16. No property, real or personal, shall be exempt from taxation, except such as may be used exclusively for public schools, and such as may belong to the United States, to the State, to counties, or to municipal corporations, within this State."

The preceding sections were thus:

"13. The credit of the State, shall not be given or loaned in aid of any person, association or corporation; nor shall the State hereafter become a stockholder in any corporation or association, except for the purpose of securing loans heretofore extended to certain railroad corporations by the State" (Const. 1865).

"14. The General Assembly shall not authorize any county, city or town to become a stockholder in, or to loan its credit to any company, association, or corporation, unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto."

"15. The General Assembly shall have no power for any purpose whatever to release the lien held by the State upon any railroad" (Const. 1865).

These sections bear somewhat on the power to tax and hence are inserted here.

I copy the whole of article 10 of the Missouri Constitution of 1875.

ARTICLE X.

"REVENUE AND TAXATION.

"Section 1. The taxing power may be exercised by the General Assembly for state purposes, and by counties and other municipal corporations, under authority granted to them by the General Assembly, for county and other corporate purposes.

"Sec. 2. The power to tax corporations and corporate property shall not be surrendered by act of the General Assembly.

"Sec. 3. Taxes may be levied and collected for public purposes only. They shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws.

"Sec. 4. All property subject to taxation shall be taxed in proportion to its value.

"Sec. 5. All railroad corporations in this State, or doing business therein, shall be subject to taxation for state, county, school, municipal and other purposes, on the real and personal property owned or used by them, and on their gross earnings, their net earnings, their franchises and their capital stock.

"Sec. 6. The property real and personal, of the State, counties and other municipal corporations and cemeteries shall be exempt from taxation. Lots in incorporated cities or towns, or within one mile of the limits of any such city or town, to the extent of one acre, and lots one mile or more distant from such cities or towns to the extent of five acres, with the buildings thereon, may be exempted from taxation, when the same are used exclusively for religious worship, for schools, or for purposes purely charitable; also such property real or personal as may be used exclusively for agricultural or horticultural societies; provided, that such exemptions shall be only by general law.

"Sec. 7. All laws exempting property from taxation, other than the property above enumerated, shall be void.

"Sec. 8. The state tax on property, exclusive of the tax necessary to pay the bonded debt of the State, shall not exceed twenty cents on the hundred dollars valuation; and whenever the taxable property of the State shall amount to nine hundred million dollars, the rate shall not exceed fifteen cents.

"Sec. 9. No county, city, town or other municipal corporation, nor the inhabitants thereof, nor the property therein, shall be released or discharged from their or its proportionate share of taxes to be levied for state purposes, nor shall commutation for such taxes be authorized in any form whatsoever.