State v. U. S. & Canada Express Co. ( 1880 )

The question is of the constitutionality of chapter 63 of the General Laws, by the terms of which every railroad expressman is required to pay annually to the state, for a license, either two per cent. of the gross receipts of his business, or five dollars per mile. The unconstitutionality of an unequal division of public expense among New Hampshire tax-payers has been settled too long, and by too many decisions, to be a subject of debate or doubt. The question is, not whether an unequal division is constitutional, but whether this statute is a provision for dividing public expense among tax-payers; whether, in its operation and legal character, it is a violation of the rule of equality; and, if unequal, whether it is an exercise of some other power than that of taxation. The answer of this question requires a precise understanding of the reason and scope of the settled rule, its origin and history, and the end it is designed to accomplish. It is to be intelligently applied as a broad, fundamental, and rational principle, not as an arbitrary formula or mere technical method, and with due regard for precedents, legislative and judicial.

There have been in our taxation some inequalities merely nominal, and others not so substantially unjust as to have any weight as precedents of actual wrong, or as authorities for the introduction of exceptions to the rule. "Even after the Revolution, and the adoption of the constitution, although perhaps substantial justice was administered in most cases, little can be claimed for the courts on the score of their scientific administration of the law, according to strict legal rules. It was not in the very nature of things that legal investigations should be pursued at that day as they have been since." Pierce v. State, 13 N.H. 536, 557, 558. In that case Judge Parker explains why we do not look with confidence to the period immediately succeeding the Revolution for judicial precedents. And the want of legal learning and skill was not confined to the courts. The people, few in number, recovering laboriously from the effects of the war, concerned themselves with practical results. With little leisure for seeking grievances in mere formal defects of their own legislation, paying little attention to the difference between the tax power and other powers, and largely controlled in their views of public affairs by their pre-constitutional usages, they were satisfied with customary modes of assessment that did not appear to them substantially inequitable. Their tax laws were manifestly designed to be just, and were specially calculated to avoid the injustice of inequality in assessors' valuations. They were adapted, by such legislative skill as undertook the work, to the situation of the community. And, considered in view of that situation, and the influence of ancient usage upon public perceptions and public judgment, they were not so materially unfair, at the times of their enactment, as to furnish any evidence of a prevailing opinion that an unequal division of public expense was an exercise of the tax power.

Much of their operation was essentially equalized by an approximate uniformity of value, amount, and condition, that has now disappeared. Inequality of operation, gradually introduced by new subjects of taxation, and by increased differences in the values and varieties of old ones, has been met by legislative efforts to rectify the wrong. Such changes have taken place that methods of dividing the public expense, equitable enough for practical purposes in the last century, would now be good cause of complaint. A great mass of questions of constitutional administration, to be raised by the progress of society, and the enlarged and complicated industries and interests of future generations, were left for those generations to solve.

The title of the tax act of Feb. 7, 1789, is "An act to establish an equitable method of making rates and taxes." Its preamble is, "Whereas it is necessary that there should be an equitable rule established by law for making rates and taxes within this state, so that every person may be compelled to pay in proportion to his or her estate." Its first section is, "That henceforward all public taxes shall be made and assessed in proportion to the amount of each person's poll and ratable estate, which shall be as follows, viz., All male polls from eighteen to seventy years of age shall be estimated at ten shillings each: horses and oxen which have been wintered five winters, three shillings each," c., c. This pre-constitutional system of assessment (60 N.H. 91) was continued after 1784, not because it was practically disproportional and inequitable, but for its great advantages of uniformity and convenience, and because, under the inherited customs and other circumstances of the time, it seemed to the legislature a reasonably accurate application of the rule of equality. If they had understood an equal division of public expense was not their own right and duty, and the right of their constituents, or that they were authorizing a division grievously or substantially unequal, they would have been less explicit and less urgent in their proclamation of the necessity of such an equitable assessment as would compel every person to pay in proportion to his or her estate. Their express assertion of the necessity of all equal division is conclusive evidence of their opinion. Other tax laws contain abundant proof that equality was understood to be the duty of the government and the right of the people.

Even if it could be shown that they who adopted the constitution understood it authorized an unequal division of public expense, we have their authority for adhering to the plain meaning of the document. The legislature exercised judicial power after the adoption of the constitution, as they did before, in reversing judgments and granting new trials: and that illegal procedure was not discontinued until it had flourished, under constitutional prohibition, for the space of thirty-four years. Merrill v. Sherburne, 1 N.H. 199. For a shorter time, the ascendency of usage over legal rights was still more conspicuous in New Hampshire slavery. By the acts of April 12, 1770, Jan. 2, 1772, and July 2, 1776, slaves were taxed, like horses and cattle, to their owners. The constitution took effect June 2, 1784. Ten days afterwards, a general tax law was passed (by the first legislature of the constitution), which repealed the act of 1776, and followed the form of that act in making slaves taxable, like other property. "All male slaves from eighteen years old to forty-five, ten shillings each; all female slaves from sixteen years old to forty-five, five shillings each; horses and oxen, four years old and upward, three shillings each; cows four years old and upward, two shillings each," is the language of the act of 1782. This statute, and the continued taxation of slave property, show that the New Hampshire convention who copied the Massachusetts constitution, and the New Hampshire people who adopted it, did not understand that by its adoption they abolished slavery. In 1789 another general tax law repealed the act of 1784. In the list of taxable property, in the law of 1789, the item "slaves" was omitted. The cause of the omission undoubtedly was the decisions, in Massachusetts jury trials, that slavery was illegal, and the charges given to the juries by the court in those trials, that slavery was inconsistent with the declaration of freedom and equality in the bill of rights. Orr v. Quimby,54 N.H. 590, 633. New Hampshire accepted the Massachusetts construction of that declaration, and struck "slaves" out of the list of taxable property. Our ancestors thus acknowledged that by adopting the constitution they had unintentionally abolished slavery; and that men and women, for years unconstitutionally held as slaves, had been for years unconstitutionally taxed as property. By their acknowledgment and correction of this constitutional error, a precedent was established that is entitled to consideration in other cases (if others are found), in which their practice was not consistent with the express terms and clear meaning of the constitution.

So far as this case is concerned, the constitution has not been changed since the provisions on this subject were written, in 1781 (9 Prov. Papers 852), when they were largely copied from the Massachusetts constitution of 1780. The Massachusetts form was, "The department of legislation shall be formed by two branches, a senate and house of representatives, each of which shall have a negative on the other." 1 U.S. Charters and Consts. 960. The New York form (of 1777) was, "The supreme legislative power within this state shall be vested in," c. 2 U.S. Charters and Consts. 1332. The New Hampshire copy is, "The supreme legislative power within this state shall be vested in the senate and house of representatives, each of which shall have a negative on the other." The items of legislature power, set forth in articles 4, 5, and 6 of the second part of our constitution (not including the proviso inserted in 1877), are for the most part a copy of Massachusetts articles 3 and 4, which (except the last paragraph — the model of our article 6) were copied from the Massachusetts province charter. 1 U.S. Charters and Consts. 951, 952. Thus it happens that the specification of New Hampshire legislative power, in articles 4 and 5, is, in general, the language of the law-officer of the crown, who in 1691 drew up the province charter of Massachusetts in the prolix style of the public and private law documents of that age.

That charter authorized the general court to impose and levy proportional and reasonable assessments, rates, and taxes. This was copied by the committee of the Massachusetts constitutional convention, who made the first draft of the state constitution. The convention added this clause: "And also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities." Journal of the Convention 60, 198, 229; 4 Works of John Adams 233. This clause the New Hampshire convention omitted. If they omitted it because they feared it would be a pretext for an unequal division of public expense, their fear has been justified by the result in Massachusetts. Portland Bank v. Apthorp, 12 Mass. 252, 255; Com. v. P. F. C. Savings Bank, 5 Allen 428, 431; Com. v. L. G. L. Co., 12 Allen 75, 76; Com. v. H. M. Co., 12 Allen 298, 300; Com. v. P. Institution, 12 Allen 312, 313; M. Ins. Co. v. Loud,99 Mass. 146; Att'y-Gen. v. B. S. M. Co., 99 Mass. 148, 152, 153; Com. v. L. S. Bank, 123 Mass. 493, 495; Com. v. B. S. Bank, 126 Mass. 526, 530. These cases, and Oliver v. W. Mills, 11 Allen 268, 274-279, Cheshire v. C. Commissioners, 118 Mass. 386, 389, and Fall River v. C. Commissioners,125 Mass. 567, may be authorities against the validity of the act on which this suit is brought. But, as it seems to be understood in Massachusetts that the tax power of that state is granted only by the proportional tax and excise clauses, and as the tax power of New Hampshire is included in the grant of the supreme legislative power (subject to the limitation of equality on which the whole government is founded), it may be doubtful whether much light is thrown upon this case by the Massachusetts decisions. And any law or practice of Massachusetts, or any other jurisdiction, American or foreign, in which either the rule of equal rights does not prevail, or taxation is an exception to that rule, is not an authority on which an unequal division of public expense can be made in this state. Weber v. Reinhard, 73 Penn. St. 370; State v. Railroad,45 Md. 361; New Orleans v. Kaufman, 29 La. Ann. 283; Commissioners v. Nelson, 19 Kan. 234; A. U. Express Co. v. St. Joseph,66 Mo. 675.

It may be doubted whether the general grant of supreme legislative power, in the second article of the second part of our constitution, is much affected or explained by the grant of specific legislature powers, copied, in the fourth and fifth articles, from a copy of a diffuse English state paper. It may be doubted whether the supreme legislative power of article 2 does not include the specific legislative powers of articles 4 and 5, and whether the grant of the latter is not superfluous. Article 5 requires that all laws shall be not repugnant or contrary to the constitution, and again imposes the same condition upon a certain class of laws. This restriction is unnecessary, because the constitution is the supreme law. In the same article is a special grant of the power of taxation, accompanied by the limitation that taxation shall be proportional. As this grant is unnecessary, because included in the grant of the supreme legislative power in article 2, so the limitation is unnecessary, because immunity from an unequal division of public expense is reserved in the bill of rights, which, according to the testimony of its makers, "contains the essential principles of the constitution," "is the foundation on which the whole political fabric is reared, and is consequently a most important part thereof." Gould v. Raymond, 59 N.H. 260, 275.

The bill of rights is a bill of their equal, private rights, reserved by the grantors of public power. The reservation precedes the grant. Before they create the power of proportional taxation in the fifth article, and the supreme legislative power in the second article, and before they form themselves into a state in the first article, they lay the foundation, and therein reserve those personal liberties, which, upon the evidence of history and their own experience, they think cannot safely be surrendered to government. The definition of taxation, given in the foundation, is taken from books with which the leading statesmen of the Revolution were familiar. "The public revenues," says Montesquieu, "are a portion that each subject gives of his property, in order to secure or enjoy the remainder." Spirit of Laws, b. 13, c. 1. Government is formed by men for the common good, for the preservation of their lives, liberties, and estates, and the enjoyment of them in peace and safety; and "it is fit every one who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it." Locke on Government, b. 2. c. 9, ss. 123, 124, 131; c. 11, ss. 134, 140. Government, says the bill of rights, is "instituted for the general good," "for the common benefit, protection, and security of the whole community." Arts. 1, 10. "Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property. He is therefore bound to contribute his share in the expense of such protection." Art. 12. Upon every member of the community is laid a constitutional obligation to contribute his share of public expense. "He is * * bound to contribute his share." The reason is given. He is entitled to the common benefit, protection, and security for which government is instituted; he has a right to be protected in the enjoyment of life, liberty, and property: "he is therefore bound to contribute his share" of the expense. The right of benefit and protection, and the duty of contribution, are reciprocal. The former is the consideration for the latter. The latter is the price of the former.

If the governmental expense of a state prison, county alms house, town highway, district school, or other common benefit, is $1,000, that expense is a tax to be paid by those who, in contemplation of law, enjoy or have a right to enjoy the benefit, and who are the joint purchasers of it through governmental agency. B. Mills. Co. v. W. Location, 60 N.H. 156. The benefit and the expense may be either universal or local. B. C. M. R. R. v. State, 60 N.H. 87, 90, 95; Gould v. Raymond, 59 N.H. 260, 276, 278. In either case, the purchasers' shares of the price cannot be ascertained without proportion. The obligation of each to contribute "his share" requires an equal division. The legal as well as the arithmetical and common meaning of "his share" is the constitutional doctrine of taxation. Every one's tax being his share of public expense, an unequal division of that expense is not taxation. If one contributes more than his share, some other one necessarily contributes less than his share; and if one pays less than his share, somebody else necessarily pays more than his. Each one's payment of his share is not merely his constitutional duty; it is the constitutional right of his neighbors. Morrison v. Manchester, 58 N.H. 538,549; Edes v. Boardman, 58 N.H. 580, 587. And as his non-payment of his full share is a violation of their right, so his forced payment of more than his share is a violation of his right.

The right of acquiring and possessing property is constitutionally reserved. Bill of Rights, art. 2; Ash v. Cummings, 50 N.H. 591, 613; Eaton v. Railroad, 51 N.H. 504, 510, 511; Orr v. Quimby, 54 N.H. 590, 594, 597,599, 616, 618, 638, 640; Sharpless v. Philadelphia, 21 Penn. St. 147, 166; A. N. Railroad v. Baty, 6 Neb. 37. Private property can be taken by the tax power, collecting equally from all joint purchasers of public benefits the shares of the price due from them. Any one's nonpayment of his share is a compulsory payment of his debt by his neighbors, which is, in effect, a compulsory gift of their money to him for his private use. If assessors can be authorized to issue a warrant requiring the tax-collector to take from A $10 more than his share, and from B $10 less than his share, and pay the same into the public treasury, the same warrant can require the same collector to take from C and D their shares for the public treasury and the public use, and also to take $10 from C and give it to D for his private use. The difference between the case of A and B, and the case of C and D, would be a matter of immaterial form. To the extent of $10, each case would be, not a division of public expense, but the collector's transfer of money from its owner to another person, not in satisfaction of any constitutional, legal, or equitable claim, nor in the exercise of any constitutional, legal, or equitable right, public or private. To that extent, the intervention of the collector would be an unmeaning ceremony, and an unnecessary circuity. For the purpose of legality, the private levy, made by him for B and D, might as well be made by them. A statute authorizing it to be made by him or them would not be law of the land, within the meaning of the fifteenth article of the bill of rights. Cool. Const. Lim. 357. A's and C's ownership being a constitutional right, their property could not be taken by eminent domain for public use without the compensation due them as vendors, nor by taxation without the compensation due them as purchasers of public benefits. It could be taken by either power for a public purpose only, and, when so taken, compensation would be an indispensable recognition and maintenance of ownership. For a private purpose, property cannot be taken by either power, either without or with compensation. Cool. Const. Lim. 175, 498, 530, 559; 2 Dill. Mun. Corp., s. 736.

"Neither has the legislature any constitutional right * * * to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interests or welfare, it ceases to be taxation, and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them." Black, C.J., in Sharpless v. Philadelphia, 21 Penn. St. 147, 169.

To the extent of its inequality, a disproportional division of public expense is an uncompensated and unauthorized transfer of private property, for a private purpose, from those who bear more than their shares of the common burden to those who bear less than their shares. Morrison v. Manchester, 58 N.H. 538, 550. To the extent of its inequality, it is not a division of anything, and the so-called expense is not an expense, public or private. A power thus to dispose of a part of any one's estate would be a power to make the same disposition of the whole of it. All the property of all may be proportionally taken as their shares of the cost of war, police, the protection of life, liberty, health, and morals, and other public work, deemed an equivalent (Bill of Rights, art. 3), and compensation for their property. Taking the whole would be an exchange. Under our constitution, the power to tax is a power not to destroy the right of property by a discriminating process of classification or selection but to equitably defray the expense of protecting the right of property and other rights. Dividing the expense is the exercise of a power which in its nature acknowledges the limit of equal contribution, and the legal existence of the rights for those defence and advancement the power is created. But if some could be compelled by it to contribute a part of their neighbors' shares, all their property, beyond the amount of their own shares, could be taken for the same purpose. The purpose, being private, would be unauthorized. The lack of remuneration would be a mere aggravating circumstance of a lawless transaction. The taking for the private purpose, without compensation, could be justified only on the ground that there is no constitutional reservation of the right of owning property. No other right is more intelligibly reserved. That right could not have been more clearly retained; and if it is not inviolable, there is no constitutional right of any kind, and it is impossible to put in writing a reservation of rights that could not easily be changed into a surrender of them by judicial construction.

The contract theory of the origin and object of government having become practical law in this state in 1784, we need not inquire into its previous soundness as a matter of political speculation or historical fact. Locke's statement of it is, Men being, by nature, all free, equal, and independent, no one is subjected to the political power of another without his own consent: the only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for the preservation, security, and enjoyment of their lives, liberties, and estates. Thus the origin of government is in mutual consent or contract, and its object is the common benefit. Men, when they enter into society, give up rights which they had in the state of nature into the hands of the society, to be exercised for the preservation of themselves, their liberty, and their property. Treatise on Government, b. 2, cc. 7, 8, 9, 11. The bill of rights declares that all men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good. When men enter into a state of society, they surrender up some of their natural rights to that society in order to insure the protection of others. Government is instituted for the common benefit, protection, and security of the whole community, and every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property. Upon this constitutional establishment of the basis and authority of society, the creation of government by a social contract is not a mere theory. For legal purposes, the original contract is made when, with such a bill of rights, "the people inhabiting the territory formerly called The Province of New Hampshire * * solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or state, by the name of The State of New Hampshire." Const., part 2, art. 1. Whether sound or unsound as a theory, the doctrine of the social contract, being organic law, cannot be officially controverted by either branch of a government thus created. And neither that doctrine, nor any express or implied stipulation of the contract, extends the authority of either branch of the government beyond the exercise of delegated, limited, and divided power, in a prescribed manner, for the common benefit. 1 Bl. Com. 47, 48, 49, Sharswood's notes.

In the supposed state of nature men exercise the natural, essential, and inherent right of acquiring and possessing property as best they can. By mutual agreement, establishing an agency called government, they impose upon it various duties, including that of protecting the natural and reserved right of acquisition and possession, and the duty of enforcing every one's obligation to contribute his share of the expense. Equally free and independent, they do not agree to contribute disproportionally. They do not give their agent a power of dividing their public expense unequally, which would be an unlimited and unnecessary power of transferring private property from its owner, without compensation, to another person, for a use and purpose entirely private. Such a transfer would be neither a protection of life, liberty, or property, nor a collection of the public expense of protection, but a mere destruction of the right of property by a servant, whose duty and authority are expressly limited to such protection and collection. And so long as constitutional government continues to be the execution of a written agreement, creating a limited agency for the purchase of common benefit, protection, and security, by proportional contribution, the contract can no more be executed by an unequal division of the expense, than the right of property can be protected by such an unauthorized extinguishment of it.

Government is "instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men." Bill of Rights, art. 10. The formation of a favored class is not a purpose of the contracting parties, and therefore not a power delegated by them. By a selection of subjects of taxation, or other method of classifying persons, requiring some to pay their neighbors' shares of public expense, the community would be divided into inferiors and superiors; and the agency, established for the common benefit of all, would be carried on, without authority, for the private interest and emolument of the privileged class, to whom, for no public purpose, others would be forced to pay annual tribute. The custom of New Hampshire slavery, which transferred to some the ownership of the earnings and labor of others, having been abolished by the first reservation of the contract, it is impossible, under that and other reservations of equal rights, to introduce an inequality of classes that would differ in degree only, and not in legal principle, from the custom that vested in one class the entire product of the industry of another class. Equality is not one of many grades of servitude, nor a partial freedom from legal inferiority.

If equality were not retained by express reservations, and proportion were not expressly required by the fifth article of the grant, the contract would not authorize an unequal partition of the common burden. The people having voluntarily agreed with each other to form themselves into a body politic, the legal meaning of the written agreement is their intention and understanding, shown by competent evidence. There is no presumption of law or fact that they intended to share the expense disproportionally. An intention to subject themselves to disproportion cannot be implied from the nature of the enterprise, and can be proved only by an express stipulation of the contract, or other competent evidence. There is no such stipulation in the writing, and neither there nor elsewhere is there any competent or incompetent proof of such an intention. Sharing the expense among themselves, equally or unequally, would not be an exercise of the war power of confiscating the property of public enemies. Miller v. U.S., 11 Wall. 268, 305, 306, 315.

The supreme legislative power is the supreme power of making law. An unequal division of public expense would be a transfer of private property from its owner, without his consent and without compensation, to another person, for no purpose of public benefit. And such an act of violence not being public belligerent confiscation, would not be law, nor the enactment or enforcement of law. Cool. Const. Lim. 175; Loan Association v. Topeka, 20 Wall. 655, 662, 663, 664. In no legal sense would it be a rule of civil conduct. 1 Bl. Com. 44. It would no more be law within the meaning of the grant of law-making power, than it would be law of the land within the meaning of the fifteenth article of the bill of rights. "The whole of a public burden cannot be thrown on a single individual under pretence of taxing him, nor can one county be taxed to pay the debt of another, nor one portion of the state to pay the debts of the whole state. These things are not excepted from the powers of the legislature, because they did not pass to the assembly by the general grant of legislative power. A prohibition was not necessary. An act of assembly, commanding or authorizing them to be done, would not be a law, but an attempt to pronounce a judicial sentence, order, or decree." Black, C.J., in Sharpless v. Philadelphia, 21 Penn. St. 148, 168. It would not be an exercise of any power granted to either branch of the government. Ashuelot R. R. Co. v. Elliot, 58 N.H. 451, 456-458.

When exactness is impracticable in the exercise or vindication of an asserted right, it does not follow that the right does not exist, or that it is incapable of judicial vindication. Slavery was abolished by the reservation of equality, notwithstanding the historical and inevitable fact of inequality. The common right of light and air cannot be correctly divided; but the whole title is not therefore vested in the strongest, or in those whose number and combination for the time being make them an effective majority. There are many rights that cannot be mathematically adjusted. Rights of property, reputation, person, and family, are generally defended by due process of law, using a measure of damages far less accurate than arithmetical computation. Equality, being practically the source and sum of all rights, and the substance of the constitution, is not abolished by the impossibility of maintaining and enjoying it with precision. Many requirements of the common law, the statutes, and the constitution, are answered by approximations, reasonably free from error, and sufficient for the practical purposes of substantial justice. The difficulty of dividing public expense into the shares which the members of the community are bound to contribute, does not insert in their contract a power of imposing the share of one man, family, or class of men upon another man, family, or class.

Such a power could have been inserted in 1784. "All men are equally free; but some may be involuntarily bound to the service of bearing others' shares of the common burden. All men have the natural, essential, and inherent right of acquiring and possessing property; but, in dividing public expense, this right may be violated by transferring any one's property to some other person or persons, for no public purpose, and without compensation. Government is instituted for the common benefit, protection, and security of the whole community, and not for the private interest or emolument of any one man, family, or class of men; but, in the division of public expense, the ends of government may be perverted by classification. Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property; he is therefore bound to contribute his share in the expense of such protection: but this obligation is not a constitutional one; the share which one member is bound to contribute may be collected from another member; and all the property of one man, family, or class of men may be taken by taxation to protect the untaxed property of another man, family, or class. No subject shall be deprived of his life, liberty, or estate but by the judgment of his peers or the law of the land; but, without fault, trial, notice, or compensation, his estate may be taken from him and given to his neighbors, for a private purpose, by a classifying method of dividing public expense; and making such a transfer by an act entitled an act of taxation, is making law within the meaning of this instrument. Authority is granted to impose and levy proportional and disproportional assessments, rates, and taxes." By such a contract, taxation might have been made an exception to the rule of equal rights.

An act entitled an act of taxation may be valid, although not an exercise of the power of collecting the constitutional shares of expense. The title may be an immaterial misnomer and error of form only, and the act may be an exercise of some of the other powers which provide for the common benefit, protection, and security, and which may be conveniently grouped under the name of the protective power. A fine, imposed by this power, is practically as useful to the government as a tax of equal amount; and a protective law is not invalid merely because it produces public revenue. Vice, pauperism, and crime may be suppressed and prevented by a variety of measures. In behalf of property, health, life, and morals, the social contract may be performed by destroying buildings, burglars' tools, gambling and counterfeiting implements, and intoxicating liquors. The spread of fire, and physical, mental, and moral disease, may be stopped by vigorous action. Destruction may be protection. Peirce v. State, 5 How. 504, 589. For the common security, by the judgment of his peers and the law of the land, an offender may be deprived of his estate, liberty, and life. Wrong may be obstructed and repressed by methods less severe than capital punishment. The protective power may seek, by mild courses, to lessen an evil, or check its increase. Instead of destroying the life, liberty, or property of wrongdoers, it may discourage their noxious business, and restrain it within certain bounds.

In 1715 it was enacted, that "to prevent nurseries of vice and debauchery" there should be a limitation of taverns and ale-houses, and that the general sessions should license no more than eighteen in the province. Laws, ed. 1771, p. 59. The constitution did not abolish the right to restrain the sale and use of intoxicating liquor. Pierce v. State,13 N.H. 536, 571, 572. A license or excise law tending to control and hinder the consumption of such liquor may be an act of the protective power. Cool. Const. Lim. 581-584; State v. Cassidy, 22 Minn. 312. The power that can destroy an article because its use is hostile to the common welfare, may endeavor to diminish the use by an excise increasing the price. In 1787, one of Hamilton's arguments for the adoption of the federal constitution was, that by a federal duty on imports the single article of ardent spirits might be made to furnish a considerable revenue; that at a shilling per gallon it would produce £ 200,000; that it "would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of society." The Federalist, No. 12. The protective operation of such a law was put forward as an argument in its favor. The New Hampshire liquor excise law of 1781 (amended in 1782) was, by the act of June 27, 1787, amended and recognized as continuing in force after the adoption of the constitution. September 28, 1787, the liquor excise was increased. The liquor law of 1838 was a regulation of the internal liquor trade of the state. "One object to be effected by it must have been to place the trade in liquors, where it existed, in the hands of suitable persons to be entrusted with such business; and another was, doubtless, by the diminution of the consumption of them, to prevent in some measure the manifold evils arising from intemperance, and to secure to the people the benefits to be derived from its suppression, so far as the act might have that effect." Pierce v. State, 13 N.H. 536, 582, 583 — S.C., 5 How. 504.

Notwithstanding the omission of the excise clause in our copy of the Massachusetts constitution, the power that can destroy liquor can put upon it an excise as a discouragement of its existence. It may be subjected to a depressing and destructive excise by the same statute that authorizes its extirpation by the ordinary mode of abating nuisances. And if the excise thus imposed is called a tax, it may nevertheless be protection. The constitutional question is not so much of the names as of the substance of things. The preambles of the liquor excise laws of 1781 and September 28, 1787, indicated that revenue was the sole object of those laws; and the title of the latter was "An act to raise a revenue to this state by excise." Whether any statute, evidently understood and intended by the legislature to be an act of the tax power, can be sustained as an act of the protective power, is a question that need not now be considered. But it is material to observe that if an excise or license law, enacted solely for a protective purpose, has a practical tendency to accomplish that purpose, its production of revenue is no more unconstitutional than the derivation of revenue from fines in criminal cases.

The congress of the confederation of 1778-1789 had no power to levy taxes or to raise revenue. 1 Story Const., ss. 232, 240, 253-258; 1 U.S. Charters and Consts., p. 7, art. 2; p. 8, arts. 5, 6; p. 9, arts. 8, 9. Our state constitution was substantially a national one from 1784, when it took effect, to 1789, when the federal government went into operation. And it is national now, except in those matters in which national power has been granted to the Union. Before the supreme legislative state power of laying duties on imports was suspended by the federal constitution, we had state tariff laws. The preamble of the New Hampshire tariff act of 1786 was, "Whereas the laying duties on articles of the produce and manufacture of foreign countries will not only produce a considerable revenue to the state, but will tend to encourage the manufacturing many of those articles in the same." That was an express avowal of the double purpose of revenue and encouragement of home manufactures. Nails were among the articles named in the act. The preamble of an act of 1789, entitled "An act to encourage the making of nails within this state," was, "Whereas a general manufacturing of nails within this state would prevent great sums of money being sent abroad for purchasing that necessary article, and may be a means of employing many poor people, whose time will otherwise be misspent and totally lost to themselves and the community." The act offered a bounty for the manufacture of every hundred thousand of wrought twenty-penny, ten-penny, six-penny, and four-penny nails.

Another act of 1786, entitled "An act to encourage the manufacturing of linseed oil within this state," reciting in a preamble that "the manufacturing of oil from flax-seed within this state will furnish employment for poor persons, have a happy influence on the balance of trade, and greatly contribute to the wealth of the good subjects of this state," exempted linseed oil mills from taxation for ten years. By an act of 1787, mills for slitting, rolling, and plating iron, and shops for making nails, were exempted from taxation for ten years. The owners of such mills were to have annual abatements for seven years in their taxes for as many poll-taxes as they employed of proper workmen in such mills. A bounty of £ 100 was offered for the erection and completion of such a mill within one year, being the first of that kind in the state; and the first mill, with its mill privilege, was exempted from taxation so long as it continued to be occupied in the business. In 1789, by a similar act, the manufacture of sail-cloth was encouraged. In 1792, a ten-years act, entitled "An act to encourage the manufacture of malt liquors", subsidized brewers by exemption from taxation, for the alleged reason (stated in the preamble) that "the manufacture of malt liquors in this state will tend to promote agriculture, diminish the use of ardent spirits, and preserve the morals and health of the people." An act of 1786, reciting in a preamble that the importation of certain articles would greatly promote the manufactures of this state, allowed those articles to be imported free from duty. Another act of 1786 exempted gold and silver from import duties, on the ground (stated in the preamble) that the importation of gold and silver into this state, to exchange for produce or manufactures thereof, would much more promote the interest of the good subjects of the same than the importation of foreign luxuries. In 1816, "An act for the encouragement of manufactures" exempted from taxation for two years an amount not exceeding $10,000 of "capital stock employed in each and every manufactory now established in this state, for the manufacturing of cotton yarn and cotton cloth, of woollen yarn and woollen cloth, and of salt."

The payment of a bounty or subsidy out of the public treasury, by the protective power, may be made in the form and under the name of a tax exemption. "A law which subjects all real estate to taxation except houses of public worship and parsonages, thus subjecting all other estates to direct contribution to the public charges, as effectually compels all such other to contribute to the support of the institution that maintains the church and parsonage as by a direct appropriation to that object. In its practical effect such exemption is a direct subsidy from the state to the church." Report of Judge Sawyer, Chairman of Tax Commissioners (1876), p. 39. Tax exemption has been adopted as a method of expending public money. The protective power has been exercised by giving bounties of exemption from taxation, as well as by giving bounties of money obtained by taxation. The generation by whom the constitution was adopted understood the state could pay a sum of money to an individual, for a public purpose, by exempting him from the payment of the same amount of tax. They did not understand there would be any constitutional virtue in going through the form of collecting money from him, and immediately paying it back to him. Whether, in all or any of the instances of exemption, the protective power has been constitutionally exercised, we need not now inquire. That power may discourage many things that are injurious by compulsory contributions to the revenue, and encourage many things that are beneficial by payments from the revenue. The same power has discouraged ale-houses and the consumption of intoxicating liquor, by excise, license, and prohibitory laws that brought money into the public treasury, and encouraged the manufacture of malt liquor by an exemption that was a payment of a bounty out of the same treasury. The payment of bounties by tax exemptions, and the receipt of compulsory contributions under the protective powers though they affect the revenue, are not to be confounded with the operation of the tax power which collects the constitutional shares of the expense of protection. Cool. Tax. 10, 11, 152; C. P. P. Co. v. Chicago, 88 Ill. 221.

The dog tax, so-called (G. L., c. 115, ss. 12, 13), is a discouragement of owning, keeping, and raising animals that are generally unprofitable, and often mischievous. Cool. Const. Lim. 595; Orne v. Roberts, 51 N.H. 110,113, 114; Ex parte Cooper, 3 Tex. Ct. App. 489. The sums to be paid are fixed, not by the value of the property, but by an arbitrary rule, without regard to the equality essential in a tax. This provision of the dog law, although it calls the exaction a tax, is an act of the protective power, which, in other sections of the same chapter, authorizes the licensing, regulating, restraining, and killing of dogs as beasts, excepted by the common law out of the ordinary rules of property, and in other sections of the same chapter offers bounties for killing wolves, bears, wildcats, foxes, and hawks.

An act of Massachusetts, in force here during the last fifteen years of our union with that colony, gave a reason for taxing itinerant merchants and peddlers in any month of the year. Mass. Anc. Ch., c. 21, s. 5. The New Hampshire act of 1718, entitled "An act against hawkers, peddlers, and petty-chapmen," had the following preamble: "Whereas complaint is made of great hurt to and the decay of trade, occasioned by hawkers, peddlers, and petty-chapmen, passing to and fro through the country, to vend goods, wares, and merchandises, much of which was purloined, obtained by robbery and stealing, so that divers men of trades, handicrafts-men, and others none of the best fame, having left off the exercise of their trades and businesses, turn hawkers, peddlers, and petty-chapmen." "For remedy of which mischief" peddling was wholly prohibited, under a penalty of £ 20. Laws, ed. 1771, p. 62. This act gave a reason for exercising the protective power against peddlers; and the power that can act against the evils there mentioned, by prohibition, can also act by the lesser coercion and restraint of excise and license. Chapter 49 of the Laws of 1878 requires peddlers of lightning-rods to pay the state an annual license fee of $500. The amount of the fee, the provisions of the second section of the act, and the notorious character of much of the recent lightning-rod traffic (not unfrequently exhibited in legal proceedings), show that this legislation is protective. In the trial of suits of various kinds, including many brought by endorsees of notes given for patented articles and patent rights, it is manifest that the community are insufficiently protected against the frauds of many transient persons. Excise and license laws for the prevention or mitigation of such evils are not acts of the tax power.

In some important respects the defendants are not the equals of men in general. They have voluntarily enlisted, as common carriers, in the public service. Others, in other occupations, may sell their services to some, and refuse to sell to others; may refuse to sell to any except for an exorbitant price; and may sell to one for more, and to another for less, than a reasonable price. The defendants have not this liberty. As public servants, they are bound to render equal service to all, for an equal and reasonable compensation. McDuffee v. Railroad, 52 N.H. 430. But the difference between their public business and the private employments of others is not authority for binding them to the involuntary private service of bearing others' shares of public expense. The protective power can make provision for ascertaining and fixing the reasonable amount of their compensation in some more convenient mode than a multiplicity of suits between them and their employers. There have been statutes requiring the reasonable compensation of the proprietors of ferries, canals, and toll bridges, and others voluntarily engaged in the public service, to be established in judicial proceedings. Act of Feb. 28, 1783 (Laws, ed. 1789, p. 233); Laws 1863, c. 2,805, s. 4; Laws 1878, c. 150, s. 3. But for a provision on this subject, in the case of railroad expressmen or other common carriers, an unequal division of public expense is not a constitutional substitute.

The reasonable rates of such expressmen not being fixed by legal process, a railroad-express tax law, so called, might be designed to be an act of discouragement, like a liquor excise. It would tend to discourage the employment of railroad expressmen by increasing their rates, and to encourage other carriers who cannot successfully compete with railroad expressmen without the assistance of a protective tariff. But there is no purpose for which we can presume the statute on which this suit is brought was designed to be a discouraging or encouraging act of the protective power.

A railroad-express tax law might be designed to be an act of taxation, laying upon railway-express transportation a burden to be equally distributed, by natural law, among the purchasers of such transportation and their customers, as a tax laid on any articles of property is distributed among the consumers or users of the article. The object might be to make the expressmen mere collectors of the tax. Crandall v. Nevada, 6 Wall. 35, 39, 40; Railroad v. Pennsylvania, 15 Wall. 284, 294, 298; Henderson v. Mayor, 92 U.S. 259, 268; W. U. T. Co. v. Richmond, 26 Grat. 1, 27; Judge Cooley, in 4 Southern Law Rev. (N.S.) 185, 196; Morrison v. Manchester, 58 N.H. 538, 554, 555. But there is nothing in the language of this statute, the nature of the business, or the history of the; times, having any tendency to show that the legislature had such an object in view. And before examining the validity of the statute as an act of discouragement or encouragement, or an imposition upon the whole community of a self-distributing tax to be collected by railroad expressmen in addition to their reasonable compensation, we ought to have some evidence rebutting the presumption that the legislature did not intend to authorize such expressmen either to add to their charges as much as this statute requires them to pay to the state, or to raise their charges above the reasonable standard of the common law. It does not appear that their charges were so low in 1878 as to make it probable that the legislature intended to increase them; and a construction authorizing an increase of them beyond a reasonable compensation would be more likely to thwart than to carry out the legislative purpose.

In its original draft the act had the title of a tax law. Report of Tax Commissioners of 1878, p. 186. In the Laws of 1878, c. 51, it had the title of a license law. In the Gen. Laws, c. 63, it has the title of "Taxation or Licensing." "Its constitutionality must depend upon its real character, upon the end designed and to be accomplished, and not upon its title or professions." Pierce v. State, 13 N.H. 536, 580, 582. "In whatever language a statute may be framed, its purpose must be determined by its natural and reasonable effect." Henderson v. Mayor, 92 U.S. 259, 268; Railroad v. Husen, 95 U.S. 465, 472. "If the practical operation and effect of an assessment, authorized by an act of the legislature, would be tax levy a tax on the property of certain individuals or corporations from which all others were exempt, so as to throw on a particular class a disproportionate share of the burdens of raising money for public purposes without any equivalent benefit, it would be the duty of the court to declare it to be an unauthorized act of legislative power, irrespective of the particular form in which the assessment or tax might be imposed. The validity of the act would depend on the substantial nature and operation of its provisions, and not on the formal language in which they were expressed, or on the mode in which they were to be carried into effect." Com, v. H. M. Co., 12 Allen 298, 301.

In no view that has been suggested, and in none that occurs to us, can this statute be held to be an act of the protective power. An an act of taxation increasing the charges of railroad expressmen beyond a reasonable compensation for their services, and employing them as collectors of a tax laid upon the general public by whom express charges are directly or indirectly paid, it lacks necessary evidence of such a legislative design. As a taxation of such expressmen, it makes an unequal division of public expense, and binds them to the private service of paying their neighbors' shares. Expressmen are subject, by general law, to the uniform taxation of the whole community. In addition to that, this special law puts upon railroad expressmen a tax which is put upon nobody else. Whether it is a tax imposed upon person, property, income, business, gross receipts, profits, or earnings, is immaterial. It is a tax which one class of men are required to pay, and from which all others are exempt. It is a perfect example of unequal division of public expense. It does not tend towards equal right by any degree of approximation, but is as distant as possible from it, and diametrically opposite to it. It is inequality, pure and simple. There are other objections which need not be considered, because this one is decisive. If a special, discriminating tax of two per cent. could be taken from one class of men alone, a similar tax of one hundred per cent. could be taken from any man, any family, or any class of men; one man, one family, or one class could be singled out, and compelled to pay all the expense of the common benefits of government, and all others could thus be discharged from their constitutional obligation to contribute their shares. The action cannot be maintained.

Case discharged.

FOSTER and SMITH, JJ., did not sit: the others concurred in the result.