Page:Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.pdf/40

Rh Immunities and Disabilities. As already brought out, immunity is the correlative of disability ("no-power"), and the opposite, or negation, of liability. Perhaps it will also be plain, from the preliminary outline and from the discussion down to this point, that a power bears the same general contrast to an immunity that a right does to a privilege. A right is one's affirmative claim against another, and a privilege is one's freedom from the right or claim of another. Similarly, a power is one's affirmative "control" over a given legal relation as against another; whereas an immunity is one's freedom from the legal power or "control" of another as regards some legal relation.

A few examples may serve to make this clear. X, a landowner, has, as we have seen, power to alienate to Y or to any other ordinary party. On the other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is under a disability (i. e., has no power) so far as shifting the legal interest either to himself or to a third party is concerned; and what is true of Y applies similarly to every one else who has not by virtue of special operative facts acquired a power to alienate X's property. If, indeed, a sheriff has been duly empowered by a writ of execution to sell X's interest, that is a very different matter: correlative to such sheriff's power would be the liability of X,—the very opposite of immunity (or exemption). It is elementary, too, that as against the sheriff, X might be immune or exempt in relation to certain parcels of property, and be liable as to others. Similarly, if an agent has been duly appointed by X to sell a given piece of property, then, as to the latter, X has, in relation to such agent, a liability rather than an immunity.

For over a century there has been, in this country, a great deal of important litigation involving immunities from powers of taxation. If there be any lingering misgivings as to the "practical" importance of accuracy and discrimination in legal conceptions and legal terms, perhaps some of such doubts would be dispelled by considering the numerous cases on valuable taxation exemptions coming before the United States Supreme Court. Thus, in ''Phoenix Ins. Co. v. Tennessee'', Mr. Justice Peckham expressed the views of the court as follows:

"In granting to the De Sota Company 'all the rights, privileges, and immunities' of the Bluff City Company, all words are used which could be regarded as necessary to carry the exemption from"