Owyhee bullion. [volume] (Silver City, I.T. [Idaho]) 1866-1867, 1867-06-27

.. DiSlIIcJ court LOT ll0 SECOND JUDICIAL
District Of the Territory of Idaho, John
Swartz, plainlili, rs. j. 1. Crutcher, Sher-
iii, defendant.
I The facts of this case are as follows: The
| plaintiff Is the keeper of public dance house
or hurdy gurdy," as defined by the statutes
Of the Territory is IL resident Of Boise coun-
~ and doing business at Idaho City. BY the
statutes Of this Territory see Rev. Laws 4th
session, page 73l license tax is imposed
upon the class OF persons, of whom plaintiff
is one of four dollars per day, and no license
shall issue for less time than ten DAYS, and
the Tax Collector is authorized to make dis
traint ofproperty for the payment of said IL
cense, in case the keeper of any such house
refuse to take out license as required by law.
Thus stood the Revenue law OF 1864
Inow proceed to examine the objections
of the plaintiff IN the order in which they
are presented.
! The plaintiff urges that this act is void be-
cause it is eXturtionate and oppressive.
his is question OF fact and not of law.
| do not know that the license required Is a
high or low license. The amount of q tax
is subject OF legislative discretion. 10
the taxpayer taxes always seem high, but
whether the legislature have exceeded the
just rate or not, isnever subject for judicial
review. Whatever tax the citizen paws is
imposed by himself, through his legislative
agents, and the remedy is in his hands-not
in that of any court.
1t is true that a tax may be so manifestly
invidions, unequal, and violatve of the fun
damental principles Of taxation, as to require
the intervention of the judiciary; but that
can never be ON the simple ground that it is
unjust and oppressive. When it is incon
slstent with some guaranteed Fundamental
jfghfS Of lie citizen, it may be set aside TO
prevent oppression, but only in some such ex-
IRENE case, and do not perceive this to be
one. This disposes OF the authorities cited
in the Pacific Law Magazine (the Utah case)
and the reference to the case of the People
rs. Coleman, 4th Cal. Rep. j6.
The second objection of the plaintiff to this
act is that it violates the provision of the
9Th section Of the Constitution of the United
States, which says that "all duties, imposts
and excuses shall be uniform Throughout the
United States | think this section is a
Intuition upon the power of Congress; and
us the legislative power of this Territory is
wholly 10y grant from Congress, conveyed
in the organic act OF this Territory, (Sec 81
| think it equally applicable TO the legislative
Assembly wIch enacted this law. 1t has been
dec.led as conteuaed by defendants, that the
limitation OF the Constitution upon Congress
did not apply to the States. Barron, rs
Mayor aud City Council Of Baltimore, I
Peters Rep. 243; Lvingstons Us. Mayor
Of New York, Wendell, SO. But there is
a wide distinction between the powers of
State Legislature deriving its authority from
the people of the State, aud the Legislature
Of II Territory. The former are not bound
by the limitations in the Constitution of the
United States; the latter are bound by those
limitations, because the body which creates
the Territorial Legislature, to wit Congress
is bouud by them.
Congress have organized Legislative As
sembIy for Idaho, with authority to provide
ali rishtiul local Legislation; among which the
right to lay and collect taxes is clearly given;
but us Congress cannot, under the ConStitu-
ton, lay duties, impost and excuses in any
other way than by uniform rule, neither
can its creature, and any attempt to do so is
void. In the case ofIOughbdrough rs. Blake
| . Wheaton, 3i1, it was directly decided that
Congress had the power of taxing the peo-
pie Of the District of Columbia, and the Ter
ritOry of the United States, subject only to
the limitation above quoted, that the taxes
should be laid in conformity to the rule of
uniformity prescribed in the Constitution.
AS Congress, through its agent, the Legisla-
ture OF this Territory, have undertaken to ex-
ercise this right of taxation here, it must be
done by the same rule which Congress itself
should have adopted in the exercise of the
power primarily. Subject to this limitation,
the power of the Legislative Assembly OF this
Territory to lay and collect taxes, is as COM
plete as the power OF State, and that has
no limit, except discretion, and the limita-
tons Of the State Constitution.
That the Legislature had the power to en-
act law requiring tina description of per-
sons represented by this plaintiff, to pay a
license Of two dollars and fifty cents per day
for each female employed do not doubt; but
such IL tax must he Uniform. If such a tax
were imposed by a municipal corporation for
police or municipal purposes, although con.
fined to a single locality in the Territory, it
might perhaps be upheld. But the present
lvtay is not uniform for 1T is n mensure of roy.