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THE GREEN BAG
CURRENT LEGAL LITERATURE This department is designed to call attention to the articles in all the leading legal periodicals of the preceding month and to new law books sent us for review.
BIOGRAPHY. "Jeremy Bentham," by N. W. Hoyles, Canadian Law Review (V. v, p. 289). BIOGRAPHY. In the Journal of the Society of Comparative Legislation (New Series, No. 15, p. 9) is a brief sketch of Judge " David Josiah Brewer," by R. Xewton Crane, Esq. BIOGRAPHY. " Lord Erskine," by " Lex," Bombay Lau' Reporter (V. viii, p. 129). CONSTITUTIONAL LAW (Taxation). "Limitations of the Taxing Power including Limitations upon Public Indebtedness, a Treat ise upon the Constitutional Law Governing Taxation and the Incurrence of Public Debt in the United States, in the Several States, and in the Territories," by James M. Gray, San Fran cisco, Bancroft Whitney Company, 1906. This is a volume of some thirteen hundred pages on a subject of much present importance affecting a great variety of interests. It is the constitutional limitation upon the taxing powers otherwise unlimited, which gives rise to the greatest number of questions with regard to the validity and the meaning of laws con cerning taxes. The underlying principle, the author insists, of all the constitutional limita tions upon the taxing power is equality. It is this principle that requires that taxes shall be levied only for public purposes and that special assessments shall not exceed the benefits. It is the principle of equality that forbids the enact ment of special and local laws for the assess ment and collection of taxes and it is the principle as between the present and the future that underlies the provisions' limiting the amount of debt which communities may incur. The thought of equality, he says, is manifest also in the constitutional limitations which determine the relations between the state and the Federal governments and in the require ments that duties, imposts, and excises shall be uniform throughout the United States. The author calls attention to the fact " that
in those parts of our constitutional system where equality is least clearly manifest, there is most confusion of thought and conflict of decision and that in those parts where the prin ciple of equality is most clearly defined, har mony of decision is the rule." Equality of course is not equality of contribution, and there are differences of opinion based on different economic theories, whether the true basis of equality is that of benefit according to the older economists or that of sacrifice according to the view of the modern school, but these questions the courts are not called upon to decide except when the power to impose the tax is involved, and in judicial decisions the weight of prece dent gives undue force to earlier economic theories. In a short discussion of the definitions and the scope of the taxing power, the author makes an analysis and classification of fran chise and a distinction between privilege taxes and taxes on property. Following this are chapters on territorial jurisdiction for taxing purposes over persons and property; the pur poses of taxation; the delegation of the taxing powers; local self government; the Federal taxing power; state taxation of Federal agen cies; state taxes interfering with commerce; state taxes impairing contracts; tax laws in contravention of treaties; inheritance taxes; the fourteenth amendment and due process of law. There are several chapters on equality and uniformity in general, with a discussion of the subject of double taxation and of the police power and of license, privilege, and occupation taxes. The constitutions of the several states are examined in detail with respect to equality and uniformity, and in view of the decisions of the courts in every state. There are chapters on retrospective laws, on local assessments, and on the limitations on the rate of taxation, and the last one hundred pages are devoted to a dis cussion of the limitations of the debt-contract ing power. The author has done well to quote the provisions of the constitutions and statutes that are the subject of discussion find also the
