erty for public use and taxation; but how can that line be drawn except by the rule that taxation means uniformity of burden on competing avocations and competing property? A decision of the Supreme Court of New Jersey, some years since, seems to have a direct bearing upon the unconstitutionality of discriminating burdens, on the same class of persons or property. Thus the New Jersey court said: 'A tax upon the person or property of A, B, and C individually, whether designated by name or any other way, which is in excess of an equal apportionment among the persons or property of the class of persons or kind of property subject to the taxation, is to the extent of such excess, the taking of private property for a public use without compensation. The process is one of confiscation and not of taxation.' (36 N. J., p. 66, 1872). A word in conclusion on the subject of exemptions, which all modern systems of income taxation have recognized to the extent of discriminating in favor of persons in receipt of comparatively small incomes, and which, being effective in producing discrimination and inequality in taxation, may be regarded as constitutionally illegal: An exemption is freedom from a burden or service to which others are liable; but an exemption for a public purpose or a valid consideration is not an exemption except in name, for the valid and full consideration, or the public purpose promoted, is received in lieu of the tax. Nor is an exemption from taxation a discriminating burden on those who pay an income tax, provided the person or institution benefited by the exemption is a pauper, or a public charitable institution; for then there is consideration for the exemption, and it is justified as a matter of economy, and to prevent an expensive circuity of action in levying the tax with the sole purpose of giving it back to the intended beneficiary of the government. The avoidance of this unnecessary circuity of action is not, moreover, an injury but a gain to those who pay the tax. It cannot, however, be seriously claimed that a man having $100,000 of productive capital, and receiving from it $4,000 of annual income, is entitled to receive support from the government as a public pauper. The United States Supreme Court, in the case of Loan Association v. Topeka, held that our government, State or national, cannot impose taxes for the purpose of fostering any private business or enterprise. Taxes can be imposed only for public purposes; and, when they are imposed for any other purpose, the government acts the part of a highwayman and takes forcibly the property of A and gives it to B. In short, there is the same reason why all exemptions of like property from taxation should be based solely on the ground of a public purpose, as that all taxes collected should be for a public purpose. Finally, the principle involved in this question of discriminating income taxation is one that affects the foundation and continued existence of every free government, namely, the equality of all men before the law. Any exemption whatever, under an income tax, be it small or great, except to the absolutely indigent, is purely arbitrary; and the principle once allowed may be carried to any extent. Any exemption of any portion of the same class of property or incomes is an act of charity which every patriotic American citizen ought to reject upon principle and with scorn, except under circumstances of great want and destitution. Equality and manhood, therefore, demand and require uniformity of burden in whatever is the subject of taxation." Mr. Wells certainly expresses most clearly and concisely the true way in which taxes should be laid according to the rule of uniformity, and demonstrates to our satisfaction that the income tax is one which taxes one class and exempts another. Even in the case of Springer v. United States the Supreme Court neither had its attention called to nor determined whether the income tax of 1864 was laid according to the rule of uniformity, and merely said in the fewest words that the tax is not a direct one, though it may, perhaps, by implication hold that the tax of 1864 was an excise. But referring again to the newspaper which has been attacking all the writers against the constitutionality of the present income law, it might be well to call its attention to the fact. that in the eyes of the law every individua! is equal and that each is presumed to derive the same beneficial results from the government and laws of the United States and of each State. Can it be possible that such an emi nent journal should in the slightest way endorse the most socialistic measure which was ever enacted in this country, and which heretofore has been justified only when war or some other emergency made it necessary? Can it so far cater to the socialistic element of this country as to condemn a man because he dare say that this statute is unconstitutional and is not worthy to be recognized by the people of this country? Such journalism utters its own greatest condemnation. The opposition to the income tax, in which those people are exempt whose return from property is less than a specified sum, is not one which has recently arisen, nor one which the present generation only have taken an interest. The late Judge Amasa J. Parker, of this city, whose grandson recently wrote an article on the unconstitutionality of the income tax, was anxious that no such unjust law should be placed on the statute books. In a letter dated January 30, 1884, when a similar act was contemplated, Judge Parker wrote a letter, which was published in the Albany papers, and was reprinted in many of the leading journals at the time. It is interesting to note the sentiments of one man at that time, and we print his views, which are as follows: "The suggestion of another income tax meets with little favor. It will have even fewer friends when the subject is fully examined and considered. The late income tax was the most odious tax ever levied in this country. It was tolerated and submitted to only as a war measure. It is only in the alarms of war that the laws are silent. Even when proposed pro rata on all incomes, which would be its least objectionable form, an income tax would be the most unpopular of measures. But it is proposed to tax large incomes only-that those whose incomes exceed $10,000 shall pay the taxes. This would be a gross violation of the principles on which our government was founded, which impose burdens upon all alike. If poll taxes are to be paid, they fall upon every voter. Taxes on property are to be paid pro rata, wherever the property is found, regardless of ownership. Taxation goes without representation. Equality of political right and duty is democratic and is equity. With these primary and foundation rules adhered to, we are safe. Destroy equality as to one right or one duty, and you strike a fatal blow at all. It is said discriminating income taxes are levied in some of the monarchies of the old world. Be it so. There might may make right. But what may be enforced in Russia, and even in England, would never do for America. There is no more justice in making the man whose income is $10,000 pay the taxes for his less wealthy neighbors, whose respective incomes range from $1,000 to $9,000, than there would be in making him pay for the rents for their houses or the food for their tables. With just as much propriety, you may enact a law which would subject every house and every farm worth over $10,000 to a tax and free all other All citizens houses and farms from taxation. owe the duty of supporting the government which protects their persons and their property. The tax is a debt due from a citizen, and you may as well compel his neighbor to pay any other debt he owes as that which he owes to the government. Whether the incomes taxed be $1,000 or $10,000, is not material. The proposition to tax part, and not all is rank communism. never meet with favor in this country, and could not be enforced without undermining the social fabric and destroying all equality of right. But it is said we tax corporations. Certainly we do so, and with right. They are the creatures of legislation, and hold their franchises under an express reservation which makes them subject to any conditions the legislative power may think proper to impose. The tax they pay is the compensation for the exclusive privileges conferred. The natural citizen holds by no such tenure. His patent of nobility and equality cannot be questioned. No condition can be imposed on him that is not imposed on his neighbors. All start equal in the pursuits of life, and it will neither tend to the encouragement of industry and thrift, nor promote the happiness of the people, to make any artificial distinctions among them. All that is desirable, and all that there is the right to enforce is, to make all property, whether great or small, and wherever it shall be found, pay its just and pro rata share of the public burdens. It can PROPOSED REVISION OF THE CODE OF BY J. NEWTON FIERO. THE afforded more assistance than any other statute, and this revision bears closer resemblance to that act, since the Louisiana statute dispenses with a writ in these proceedings and provides for an order as in the articles here presented. Corpus, which is principally used to inquire into the cause of detention of a citizen. So far as Habeas Corpus is used to bring up a person to testify, its object can be better and more easily accomplished by a simple provision giving this power to a court of record; and where the prisoner is sought to be examined as a witness in a court not of record, by giving the Supreme Court power to make a proper order on due proof. Mandamus, Certiorari and Prohibition have much in common, arising from the fact that the three writs are used for the purpose of directing, conIt was the intention of the author that these sug-In this respect they are unlike the writ of Habeas trolling or reviewing the action of inferior tribunals. gestions should form part of the article on this subject which was submitted to the Committee on Law Reform of the State Bar Association and, by its direction and order of the Executive Committee, printed for distribution. It was, however, impossible to take up the matter so as to accomplish this result, and the work has now been much too hastily done to form even a basis for completed work on the lines marked out. Manifestly, a revision intended for enactment should be made with great care and be subjected to much more careful examination by the draftsman, before being presented to the profession of the State for criticism, than has been possible in the time devoted to the subject. It seemed proper, however, that something of this character should be presented as an indication of what is deemed desirable and necessary, and this draft will serve to show the views of the author as to the method which may be adopted in a revision. He expressly disavows any claim to perfection in matters of detail. An The use of the writ in mandamus, prohibition and certiorari is a relic of the former practice. No good purpose is served by it, since the order must be first granted, and the writ must follow the order. order is quite as capable of being enforced as a writ, and trouble and expense will be saved by making the order take the place of the writ. It is not Habeas Corpus is unlike the other topics in every respect, except the use of a writ, and requires entirely distinct and separate treatment. clear but that the writ should be retained in that single case on account of its associations and the place it holds in the minds of English-speaking people. In any event, it requires a separate article, and is in no way affected by the proposed revision, which abolishes the writ of assessment of damages because proceedings for condemnation under right of eminent domain are much more useful and convenient. Only one reported case exists under the provisions of Revised Statutes on which this article is founded, and it is doubtful whether this article has ever been called into practical application. This, with the ommission of the two articles treating of habeas corpus, leaves four articles in title treated, instead of seven. The number of sections in the articles treated is eighty-two, in the proposed revision the subjects are treated in twenty-six The titles Mandamus, Prohibition and Certiorari have been selected, both because of the great apparent necessity of, and opportunity for, condensation and simplification, and by reason of the fact that the author has, both in actual practice and in collation of authorities for publication, as also in presenting the subject in the lecture room, had the defects of the present Code as to these topics brought forcibly to his attention. The revision proposed is based upon the original statutes, the notes of the revisers to the present Code, the very careful and comprehensive work of the commission originally appointed to draft a Code of Procedure as finally reported in 1853, and the Codes and Statutes of California, Kansas, Iowa, Connecticut and Massachusetts, and Rules together with the act regulating Procedure in England, as well as upon the reported decisions, and is an attempt to adapt the procedure on these topics to present conditions and The topics treated illustrate very fully the defects demands. The California Code is based upon that of the Code of Procedure. In the present Code reported to the Legislature of this State by David mandamus, prohibition and certiorari with habeas Dudley Field and his associates, and contains forty- corpus, are treated in a general way under article I, eight sections on these subjects as against eighty- but little pains seems to have been taken to group two in the Throop Code. Iowa has nine sections the features common to all. The sections of this on Certiorari, the Throop Code twenty-nine; thir- article are 1991 to 2007, but sections 2000 to 2006, teen on Mandamus, Throop Code twenty-four. The that is seven of seventeen sections, treat only of a Code of Procedure of Louisiana has, however, I single topic, and should not form part of the title sections. CONDENSATION. The manner of entitling proceedings in the name of the people on the relation of the party in interest serves no purpose except to confuse one in looking through a table of cases, when it is always puzzling to find a case entitled in this manner. The theory of high prerogative writs no longer exists, and they need not run in the name of either the king or the people. The practice of making a court or tribunal a party to a proceeding, and treating it as such to the exclusion of the real party in interest, who can only appear by the courtesy of the nominal defendant, is indefensible and contrary to the modern theory of making the real party the party to the record. The use of an alternative and peremptory writ of mandamus only serves to confuse and annoy. So much for simplicity. UNIFORMITY. of the Committee or the Association, and that they have, therefore, no authority other than the personal views of the author of the paper. Again calling attention to the fact that this is not a completed work, but a suggestion only of what may be accomplished, it is respectfully sub mitted. January 5, 1895. PROPOSED REVISION OF PART OF TITLE II, CHAPTER XVI, CODE OF CIVIL PROCEDURE. Sections 1991 to 2007-2067 to 2148. ARTICLE I.—Provisions Applicable to Mandamus, Prohibition and Certiorari (Sections 1991 to 2007, present Article I) numbered sections 1 to 7 in proposed revision. ARTICLE II.-Mandamus (Sections 2067 to 2090, present Article IV) numbered sections 1 to 6 in proposed revision. ARTICLE III.-Prohibition (Sections 2091 to 2102, present Article V) numbered sections 1 to 4 in proposed revision. ARTICLE IV.- Certiorari (Sections 2120 to 2148, present Article VII) numbered sections 1 to 9 in proposed revision. ARTICLE I.-ARTICLE I OF TITLE II, CHAPTER XVI. (Sections 1991 to 2007 of present Code.) The method of framing an issue both in mandamus and prohibition is very different under the PROVISIONS APPLICABLE TO MANDAMUS, PROHIBI present practice from that in an action. No reason exists therefor. Nor is there any reason why all three of these proceedings should not be instituted in the same manner by petition and order thereon, on notice provided for by a single set of rules instead of a separate provision for each proceeding. In the same manner all appeals should be taken in the same way, and the three provisions as to costs, which are substantially, although not exactly alike, to be put in one. So much for uniformity. OBJECT TO BE ATTAINED. The object sought to be attained is the formulating of a simple rule covering as many cases as possible in the most direct language. It is believed that the practitioner will proceed with less labor and annoyance, and the client suffer less from useless litigation and costs, by framing general rules of this character and enforcing a liberal spirit of practice than is possible by attempting to define the procedure in minute and troublesome detail. By the method proposed, the practice is attempted to be assimilated to that in other special proceedings, so that the hearing is as upon an ordinary application on notice. Where an issue is framed it must be disposed of as in an action. It should be added that there has been no opportunity to submit these suggestions to any member TION AND CERTIORARI. SEC. 1. State writs abolished. 2. Proceedings, how entitled and commenced. 3. When and where order granted. 4. Where hearing had. 5. Service of papers instituting proceedings. 6. Provisions of order. 7. Costs. 8. Appeals and stay of proceedings. 9. How order enforced. 10. Definition. SECTION 1. State writs abolished. Special proceedings in the nature of mandamus, prohibition and certiorari shall hereafter be instituted and carried on by order of the court, as hereinafter provided, without the issue of a writ. (Substituted for section 1991.) [The object of this section is to abolish the unnecessary formality attendant upon the issue of a writ by the clerk of the court embodying the terms of the order and affixing a seal thereto. The writ only has vitality by virtue of the order and must follow its terms. The granting and service of the order, therefore, accomplishes everything that can possibly be done by the use of the writ. Section 1992 is rendered superfluous by this pro vision, since it only relates to the formality attendant on, except in case of a mandamus or prohibition upon affixing the seal of the court. The writ of assessment of damages (sections 2103 to 2119) is omitted as being of no value whatever. In the notes of the revisers of the Code of Civil Procedure it was stated that only a single reported case was in existence upon the question involved. The proceedings for condemnation of lands under the right of eminent domain render all the provisions with regard to the assessment of damages entirely superfluous. The writ of certiorari to bring up a person to testify, which is provided for under the article with reference to habeas corpus, seems to be entirely unnecessary as it is difficult to imagine a case in which the writ of habeas corpus would not be effective or where a statutory provision could not be enacted which would answer every purpose of the writ of certiorari to inquire into the cause of detention. The writ of habeas corpus to inquire into cause of detention requires special provisions, and its revision is not now attempted.] SECTION 2. Proceedings, how entitled and commenced.—Where the people are actually interested as a party, such proceedings may be carried on by the attorney-general or a district attorney, and in such case shall be entitled in the name of the people against the real party in interest; in all other cases the proceeding shall be entitled in the names of the parties in interest only, and not in the name of the people or of any inferior tribunal against which the order may be granted. Such proceedings shall be commenced by a verified petition with such other proof as may be necessary to set out the facts to entitle a party to the order. The papers shall be entitled in the Supreme Court, with the addition of the name of the county in which it is desired the papers in the proceeding shall be filed. The county so designated may be changed by direction of the court. (Section 1993 and 1994.) [Section 1994 is rendered superfluous by the provision in section 2 providing that the proceedings shall be entitled in the name of the real party in interest, and that the name of the people shall no longer be used except where they are actually interested. Section 1995 is superfluous, since the right to appear by attorney is well recognized and the provision for a return is unnecessary except as to certiorari, where it is provided for.] SECTION 3. When and where order granted.-An order instituting such a proceeding can be granted only upon notice to the tribunal and the parties sought to be affected. Its allowance is in the sound discretion of the court. It can only be granted at Special Term held in the judicial district embracing the county in which the proceeding is carried against a Special Term or justice of the Supreme Court, in which case the order can only be granted by the appellate division of the Supreme Court. In case such appellate division in the judicial department where proceeding is pending is not in session, it may be granted in any other department where such division is in session, but not otherwise. (Field's Code 1853, section 1258, new; Sections 2068, 2069, 2092, 2093, 2123 and 2224.) SECTION 4. Where hearing had. Except in cases provided for in last section, mandamus and prohibition must be heard at Special Term. Certiorari must be heard in appellate division of the Supreme Court when not otherwise provided by statute. (These exceptions are necessary by reason of numerous special statutes relating to different subjects which on fuller examination might possibly be collated.) SECTION 5. Service of papers instituting proceedings. - Notice of application for an order instituting any such proceeding, together with the moving papers, also the order instituting the same, shall be personally served both upon the party or parties and the inferior tribunal to be affected thereby, in the same manner as a summons in the Supreme Court; but service may be made upon a court or judge by filing the order with its clerk. When served upon a board or body other than a corporation, service may be made upon a majority of its members unless the board or body was created by law and has a chairman or other presiding officer appointed pursuant to law, in which case service upon him is sufficient. (New and in place of sections 1999, 2071, 2095 and 2130). SECTION 6. Provisions of order. The order instituting such a proceeding may fix the time within which the act directed to be done shall be performed. In case no such time is fixed such act shall be done within twenty days after service of the order directing the same. (2072, 2074, 2098, 2132). [These sections relate to time within which return must be filed, and are substantially alike.] SECTION 7. Costs.- Cost may be allowed where no trial is had, not exceeding fifty dollars and disbursements to the prevailing party. On a trial of an issue of fact, costs shall be allowed as in an action. (Sections 2086, 2100, 2143). Section 2007, which provides for punishment for contempt for non-payment of costs in this proceeding does not seem to be founded upon any good reason, and is therefore omitted. SECTION 8. Appeals and stay of proceedings.Appeals must be taken in all cases as from final orders in a special proceeding. Proceedings may be stayed at any stage thereof in a proper case by |