Hassett v. Walls

[392] By the Court, Whitman, C. J.: By the general revenue law of this State, an annual poll-tax of four dollars is levied upon “ each male resident, over twenty-one and under sixty years of age (uncivilized American Indians excepted,) and not by law exempt, for the use of the State and county.” Comp. Laws, Sec. 3166. By the Highway Act of 1873, it is provided that “each able-bodied male resident of any road district of this State, over twenty-one and under sixty years of age (uncivilized American Indians excepted,) and not exempt by law, shall pay an annual road tax, for the use and benefit of said road district, of four dollars; * * * provided if any person liable to pay road tax, as herein provided, will perform or cause to be performed two days’ work, * * such labor shall be received in full satisfaction of said four dollars.” Comp. Laws, Sec. 3927. This action is brought in resistance of the clause last quoted; respondent claiming that it is obnoxious to the following provision of the constitution of the State, in that it levies a double poll-tax and disposes improperly of the proceeds. Says the constitution: ‘ ‘ The legislature shall provide by law for the payment of an annual .poll-tax of not less than two nor exceeding four dollars from each male person resident in the State between the ages of twenty-one and sixty years (uncivilized American Indians excepted,) one-half to be applied for State and one-half for county purposes. * * * ” Art. II, Sec. 7. The otherwise plenary power of the legislature, as to poll-tax, ,is evidently limited by this language; and no more than four dollars may be lawfully levied on any person for any one year, and that must be divided equally between county and State. So if the Highway Act levies a poll-tax, it must fall. Appellant argues that the object of the law is rather a requisition of service than a poll-tax. The letter of the [393] act is rather against this position; but waiving that and admitting the object to be as claimed, appellant’s position is not bettered. Taxation may be levied in money, service, or in kind; it is no less a tax. The People v. The Mayor of Brooklyn, 4 Cow. 419. Nor is the levy of service on a road analogous to the demand of military or jury duty. The former is an emanation from the taxing power; the latter two the necessary exercise of legislative power in preservation of reserved popular rights touching the person, as-the user of the right of eminent domain does the property of the citizen. To themselves the people have reserved the right to bear arms in a well regulated militia, and also the right of trial by jury. Upon the legislature devolves the duty to maintain those rights; and although for some minutiae of that maintaining taxation may be necessary, yet demand for service is no portion of such taxation — that springs from a different source of power. In Illinois, road, jury, and military duty are placed upon the same plane; and it is held that neither is in the nature of a tax. Sawyer v. The City of Alton, 3 Scam. 127; Town of Pleasant v. Kost, 29 Ill. 490; Fox v. City of Rockford, 38 Ill. 451. But a contrary rule, as before indicated, appears so clearly correct that these authorities will not be followed. Were the law of this State like that of Illinois, which requires labor and allows it to be commuted into money, while Nevada levies a money tax but allows commutation in labor, the conclusion would be the same. Either is, and both are, capitation or poll-taxes; one in money, the other in service, but both in excess of the limitation imposed upon the legislature; if in money, both in amount and in the disposition made of the proceeds; if in service, because no other poll-tax than the one prescribed by the constitution may lawfully [394] be levied. The indication of this one has excluded from legislative power any other. So it follows that the portion of the highway act cited is unconstitutional and void; and the judgment of the district court so holding is affirmed.