The opinion
H. T. Kellogg, J. (concurring):
The principle that the taxing power may not be delegated by the Legislature to any officer, board or person whatsoever knows but one exception. That exception is that municipal officers may be granted the power to impose taxes upon property within a municipality for municipal purposes. Otherwise the principle is universal in scope and application. (Schuster v. Metropolitan Board of Health, 49 Barb. 450 ; Matter of Brooklyn Children’s Aid Society, 166 App. Div. 852 ; Gautier v. Ditmar, 204 N. Y. 20 ; Township of Bernards v. Allen, 61 N. J. L. 228; Van Cleve v. Passaic Valley Sewerage Comrs., 71 id. 574; State v. Mayor, 103 Iowa, 76 ; Vallelly v. Board of Park Comrs., 16 N. D. 25 ; Cooley Const. Lim. [6th ed.] 137; 37 Cyc. 725; Dillon Mun. Corp. [4th ed.] § 741; Gray Limitations of Taxing Power, chap. VI; 26 Harvard L. R. 257.) A board of health, holding office by the appointment of the Governor *47 of the State, not being elected by the people of a municipality, nor appointed by. any persons so elected, is not a board to which the power of local legislation may be committed. (Schuster v. Metropolitan Board of Health, supra.) The power to tax property within a municipality for school, health or other purposes cannot be delegated to a commission appointed by the Governor to be exercised in instances where the local officers neglect or refuse to act. (Township of Bernards v. Allen, supra.) The power to impose local taxes cannot be delegated to a board of park commissioners the members of which are not elected by the people. (Vallelly v. Board of Park Comrs., supra.) It may not be delegated to a board of library trustees not elected by the people. (State v. Mayor, supra.) “ The question of taxation and what property is liable therefor, and of exemption both from taxation and also from local assessments, is peculiarly legislative in character and may not be delegated to administrative officers.” (Matter of Brooklyn Children’s Aid Society, supra.) “ It is a legislative function and is vested in the absolute legitimate discretion of the Legislature. It cannot be delegated, except as the Legislature may confer upon the municipalities or political divisions, which are through the local authorities representatives of the people and participants in the government of the State, powers of providing revenue for local governmental and public purposes.” (Gautier v. Ditmar, supra.) The Commissioner of Education, in the case at bar, is not within the recognized exception. He is not a municipal officer. He was not elected by the voters of a municipality. He was not appointed by elected municipal officers. Indeed he was not elected by the people of the State or by the elected representatives of the people. If he may impose local taxation, an exception heretofore unknown in the law will have been made and a striking example of taxation without representation will be permitted to take place. There can be no doubt that the Commissioner’s order, which of necessity will result in the laying of taxes and in terms provides therefor, is a taxing order. In my judgment the Legislature was without authority to confer upon the Commissioner the power to make the order in question even if the order is within the terms of the statute. I, therefore, concur.
McCann, J., concurs.