Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-03-01

be ascertained by a reasonable construc-
ion, resulting from the application of cor
.ect maxims, generally acknowledged and
eceived." Mass. Reports, 524.
Third. The Ordinance of the Conven-
ion, upon which we are commenting, uses
10 doubtful or equlvocal language. It ex-
,ressly requires every merchant, &C., to
1--WE an account on oath of all of his pur-
:hases, in or out of the State, during the
year 1865. It was passed and ratified, as
we have seen, on the 18th day of October,
in that year. An important question is
represented, whether the Convention had
the power to lay tax upon business done
prior to the time, when the Ordinance was
adopted. This question is one of very great
Importance, both to the State and its cltl-
zens. In its discussion it will aid us to con-
slider for moment the extent of the power
possessed by the State to levy taxes upon
it's inhabitants "The taxing power is one
of the highest and most important attrl-
butes of sovereignty. 1t is essential to the
esta blishment and continued existence of
the Government Without it all political
institutions would be dissolved, the social
fabric would be broken up and civilization
would relapse into barbarism." State US. Pet
rag, 2 Jones Eq. 4O5. "The power of tax
ing the people and their property is essen
tial to the very existence of Government,
and may be legitimatelv exercised on the
objects to which it is applicable, to the ut
most extent to which the Government may
choose to carry it. The only security
against the abuse of this power is found in
the structure of the Government. In i'm
posing a tax, the Government acts upon It's
constituents. This is in general a sufficient
security against erroneous and oppressive
Of S+ofo
give to their Government right of taxing
themselves and their property and as the
exigencies of the Government cannot be
limited, they prescribe no limits to the ex-
ercise Of this right, resting confidently on
the interests of the Legislature and the in
fuence of the constituents over their Rep
resentativestO guard them againstits abuse. .
IcCuh0ch as. State of Muylluqd, f. Wheat
Rep 428. See also Providence Bank as
Billings, 2, Peters Rep. 514, at PIP. SCI,
563.
Before North Carolina entered into the
Federal Union she possessed, as an indie
pendent and sovereign State, this unlimi-
ted power of taxation, but by adopting the
Constitution of the United States, and be-
coming a member of the Union, she sur
rendered portion of this sovereign power
but only such portion as was necessary
to enable the general government to carry
on and accomplish the purposes for which
it was established as a great nation. The
taxing power of the State is, there fore, now
restricted, and the extent of this restriction
is very well expressed in the case of Nathan
VS. State of Louisiana. Howard Rep. 70.
1.-The taxing power of State is one of its
attributes of sovereignty, and where there
has been no compact with the Federal gov
eminent, or cession of jurisdiction, for
the purposes specified in the Constitution,
the power reaches all the property and bust
ness within the State, which are not prop
erly the means of the general government,
and as laid down by this Court it may be
exercised at the discretion of the State
The only restraint is, the responsibility of
the members of the Legislature to their
constituents" See also, the People VS.. the
Mayor Of Brooklyn. decided in the Court of
Appeals of New York, 4 Comstock Rep. AIT.
With this large and essential power of tax
alton, unrestricted, except when it may
come in conflict with the Constitution of
the United States with q well established
right to pass q retrospective law, which is
not in its nature criminal, we can see moth
ing to prevent the people from taxing them
selves, either through a Convention Or a
Legislature, upon property owned or a
business followed, anterior to the passage
of the Ordinance or the Statute The coun-
sci for the State has referred us to several
Acts Of Congress, which have such a retro
active effect in taxing income, &c. See Il
Statute at large at PIP. 800, 81, 445 and 472.
Whether this retrOspection could go back
beyond the current year, it is unnecessary
for us to decide. The Ordinance expressly
confines the taxation to the year, which is
the usual manner of providing for the lay
ing and collecting taxes in this State for
though a Revenue law may continue in OPP
Grafton for a longer period than one year,
the tax lists are to be made out and the
taxes themselves to be collected annually.
Fourth. We will notice here the objec-
ton which was urged in the case of Mr.
Gibson as. Mcneil, l Whist. 900, to law
which imposed a tax upon the profits of a
business commencing at time anterior to
the passage of the act. It was contended
by the able counsel who argued that case
for the tax payer, that the law was uncon-
6titutional, because the impost was in eff
feet q capitation tax, and as such was not
imposed in the manner prescribed by the
Constitution Of the State, which declares
that g capitation tax shall be equal through
out the State upon all individuals subject
to the same" See amendments to the State
Constitution, Art. 4, Sec 3, Par. l. GA
capitation tax is, las we said in Gardner u.s.
Hall, l Phil. q, one upon the person sim
ply, without any reference to his property,
real, or personal, or to any business in
which he may be engaged, or to any en-
ployment which he may follow. 1t is right
fully imposed because of the protection
which the government affords to the per-
son, independently of the connexion or re-
lation of the person to anything else
Every kind of tax must be paid directly or
indirectly by a person, but if he pay it in
consequence of his ownership Of property,
or of license to follow profession or
trade, OF of making profits by the use of
money or other things, or of privilege
granted to him either in writing or orally,
by the State or by the permission of the
state, either expressed or implied, the i'm
post is not capitation tax !; that is, it is
not tax upon his poll or head simply" It
is manifest that the tax complained of by
the defendant in this case, is tax upon
his business as a merchant, and not a tax
upon his head, in the sense in which a cap
ltation tax is used in the Constitution
The requisition upon him to give an ac-
count upon oath of the amount of his pur-
chases during the year, is for the
Of hot