11 Wis. 35 | Wis. | 1860
Lead Opinion
By the Court,
In the case of Knowlton vs. The Supervisors of Rock County, 9 Wis., 410, the majority of this court held, that an act providing for the taxation of property outside of the recorded plat, in the city of Janesville, at a less rate than that by which the property within the plat was taxed, was in violation of the provision of the constitution, that the rule of taxation shall be uniform. It has been supposed that that decision rendered questionable the validity of the statute now in force in respect to the taxation of rail and plank road companies; and this application has been made for the purpose of determining whether, in the opinion of the court, this statute is within the principle established in that case. An alternative writ of mandamus ' was issued for the .purpose of compelling the company to make the statement, and pay the tax provided for in sections 182 and 183, chap. 18, of the present Revised Statutes
It may be that it would be a sufficient reason for granting the motion, that sections 184-5-6 of the same chapter, provide other specific remedies for the collection of this tax. But as no such point was made, we shall not consider it, but will dispose of the motion upon the point presented in the.argument.
It is claimed at the outset, that the question has already been decided by this court, in the case of the Milwaukee and Miss. R. R. Co. vs. The Supervisors of Waukesha, which was decided several years ago, but in which there never was any opinion written. The same position was taken in Knowlton vs. Supervisors of Rock Co.; and it was there intimated in the opinion of the Chief Justice, that under the peculiar circumstances of that decision, not knowing the precise ground upon which it rested, nor the reasons of the court, we could hardly feel bound by it as an authority. Its effect, however, was at that time avoided by the fact that, according to the best information we had of it, the court held that the imposition upon the railroad was not a tax, within the meaning of the constitution. The source of that information was a letter written by one of the judges to one of the counsel in the case, stating the points decided. And it was there said that the court held: 1. That the amount required to be paid by the railroad company was not a tax; and that if it was a tax, the constitutional requirement of uniformity was complied with, inasmuch as all railroads were taxed alike. Mr. Justice Cole, however, who was then on the bench, places his decision upon the last ground, and does not understand that the court relied very strongly upon the first.
If then it is held to have decided, that the law taxing rail and plank road companies, is a compliance with the constitutional requirement of a uniform rule, it was in this respect overruled by the case of Knowlton vs. The Supervisors of Rock Co. I shall not attempt to go again over the ground there discussed. But as the point was again argued and insisted on by the attorney general in this case, I will allude briefly to some of the positions taken by him. It was claimed that the construction there given to the word uniform, gave it the same effect as though the word equal had also been used. He conceded that if the constitution had required the rule to be uniform and equal, that then the legislature could not discriminate between different classes of property, and tax them at different rates; but claimed that the word “ uniform” required equality, only in each class of property, but not as
.If a general rule applicable to all taxable property, is uniform, though taxing different classes at different rates, merely because each class is taxed at the same rate, then, by the same reasoning it would be equal, because each class would be equally taxed. It is very obvious that it would not be equal as between the different classes. But it is just as obvious that as between them it would not be uniform. The fallacy of the argument consists in taking the liberty of dividing the rule, when construing thé word uniform, and considering the manner of taxing each class as the entire rule, without doing so in respect to the word equal. But there is no more authority for doing so in the one case, than there would be in the other, and none in either. The rule of taxation is a general rule, and is applicable to all taxable property. “ Uniform” means, unvariable, resembling itself at all times, conforming to one rule or mode. It is very clear therefore that a rule taxing horses at one rate, cattle at another, and land at a third, would not be a uniform rule. The fact that all horses were taxed alike would not make it so, because the mode of taxing horses would be only a part of the rule. That part might be uniform with itself, but the moment a change was made to other property, there the rule changed, and the uniformity ceased. By any other construction there might be as many different modes and rates of taxation, as there may be classes of property, and yet the rule of taxation be uniform. A proposition which is a self-evident contradiction.
The object of the constitution was to produce justice and equality in the burden of taxation, as between property taxable at all. The evil to be prevented was, discrimination in favor of one kind of property and against others. This evil experience had shown was likely to arise. It was common for the owners of particular kinds of property to combine to
The fact that the provision of the constitution of the United States requiring “duties, imposts, &c., to be uniform throughout the United States,” has been held to allow discrimination between different kinds of property, does not at all impair the force of our position. A provision requiring uniformity has in view some circumstance or quality with reference to which it is to be determined. If, color be the quality, several articles may be of a uniform color, though differing in other respects; and so of any other quality. The provision in the constitution of the United States was designed to secure uniformity as between the states, not as between different kinds of property. The language expressly indicates that intention. Judge Story in his commentaries, vol 2, p. 428, says the object was “ to cut off all undue preferences of one state over another in the regulation of subjects affecting their common interests.” Locality was the point as to which uniformity was required by this object, and uniformity in this respect was not inconsistent with discrimination
But it is said that if the constitution is construed as designed to secure equality in the burden of taxation, then no property can be exempted. This would be so if it required equality in the burdens, as between all the property in the state. But this is not required. It is required only in respect to the taxable property. The rule of taxation extends to that only. The same provision says that “ taxes shall be levied on such property as the legislature shall prescribe.” And this necessarily implies that they may exempt from taxation such property as they see fit. It cannot be denied that under this power of exemption, unjust enactments in respect to taxation might be made. But those who framed the constitution did not see fit to prevent such evils by depriving the legislature of the power. But they did provide that whatever property was made taxable at all, should be taxed by a uniform rule, which was designed to secure equality in the burden as between the different kinds of taxable property, but of course, not as between property taxable, and that not taxable. The majority of the court adhere therefore, without qualification, to the rule as stated in Knowlton vs. The Supervisors of Rock County.
The only remaining question is whether the imposition upon the plank road company is a tax within the meaning of the constitution. Upon this point the burden of proof would seem to rest upon those who maintain that it is not a tax. The law itself says it is a tax. It was first enacted in 1854, and constitutes chap. 84, General Laws of that year.
I will examine, therefore, the several suggestions that were made for the purpose of distinguishing this from a tax. It was said: 1. That a tax implies an assessment upon a valuation, while this requires a specific sum without regard to valuation. It is true that an assessment on the valuation is the usual and general mode of imposing a tax. But it certainly is not essential, as in the absence of constitutional provisions, there may be capitation taxes, and specific taxation upon property. But although an assessment upon the valuation is the general mode of taxation in this state, and possibly the only mode by which the constitution can be complied with; yet if the legislature should attempt, in a particular case, to impose that which is essentially a tax, in a different mode, this difference in the mode would not prevent its being a tax, otherwise every specific departure from the general mode of taxation would furnish its own justification, and take itself out of the constitutional provision, on the ground that not being imposed as taxes generally are, it was not a tax.
There is certainly no room for the pretence that this is a bonus for the granting of the charter, the practice of requiring which, seems to have prevailed in some states. It applies by its terms to the rail and plank road companies previously organized, as well as to those thereafter to be organized. It certainly could not be a bonus for the charters previously granted; and it is clear, that it was not designed as such with respect to subsequent ones. The distinction between such a bonus and tax, is well stated in the Mayor, &c. of Baltimore vs. The Baltimore and Ohio Railroad Co., 6
The only other position taken was that this should be regarded as a sum paid for a license. But we are wholly unable to see how this can be maintained. It does not purport to be a license, it is not classed among licenses, various kinds of which are provided for in the statutes. It does not perform the functions of a license. A license is an authority granted to do that which the licensee might not legally do without it. And although the payment of money is frequently required for the license, yet its primary object is usually that of a police regulation, and not directly to raise a revenue. Por this reason licensing has not been classed as an exercise of the taxing power. It is an exercise of the police power of the state, and is analogous to the requiring of a bonus for the granting of charters; the distinction between which and a tax, has been already alluded to.
We have no idea that the provision of the constitution requiring the rule of taxation to be uniform, was designed to, or does impose any restriction on the police power of the
It was urged that rail and plank roads are of public importance, and that the public interest might be prejudiced by subjecting them to taxation for all purposes in the various districts through which they run. There may be great force in these suggestions. But if so, the remedy will be for the legislature to exempt their property, or such parts of it as they may see fit, leaving the balance, if any, to be taxed by the uniform rule by which all other property is taxed. It is not for the courts to furnish the remedy by swerving from the true construction of the constitution.
In connection with the prior decision of this court, wé were referred to the practical construction of the legislature, and the general acquiescence therein; and it was urged that it would be productive of great injustice to those whose capital had been invested in view of that construction, to change it now. We are not unmindful, as already stated, of the force
The motion to quash is sustained.
Dissenting Opinion
Dissenting. I am not able to concur in the opinion which a majority of the court have pronounced in this case. The case itself presents for consideration precisely the same questions as were involved in the case of the Milwaukee and Missisvippi R. R. Co. vs. The Board of Supervisors of Waukesha Co., decided by this court at the June Term, 1855, (see note to Knowlton vs. Supervisors of Rock county, 9 Wis., 431,) to wit: the validity of those provisions of our revenue law requiring the several rail road and plank road companies of the state to pay annually into the state treasury, oneper centum, of the gross earnings of their respective roads which are declared, shall be in lieu of ail taxes that might otherwise have been imposed upon that class or description of property. The statute upon this subject will be found in chap. 74 of the General Laws of 1854, p. 92; and the same provisions have been incorporated in, and have become a part of chap. 18, R. S. 1859, sections 182, 183, 184, 185, and 186.
It is contended that these provisions of law are invalid, for the reason that they are at variance with the true spirit and meaning of section one, article eight, of the constitution, which reads: “ The rule of taxation shall be uniform, and taxes
In the case of The Milwaukee and Mississippi R. R. Co. vs. the Board of Superoisors of Waukesha Co., this court held, after full argument and great deliberation, that chap. 74 of the laws of 1854, was constitutional, and gave judgment accordingly. A majority of the court now think otherwise,' and consider the construction then given to the above cited provision of the constitution erroneous, and have proceeded to overrule that case. It is quite clear that the decisions of this court upon doubtful questions of statutory and constitutional law will not inspire a very high degree of public confidence, if as its members change, they shall feel at liberty to revise and over-rule former adjudications upon such questions, which have been made after the fullest discussion and examination. I should therefore feel some reluctance, in view of the nature of the questions involved, and of the circumstances of the case, in departing from a decision so well considered as that of The Milwaukee and Mississippi R. R. Co. vs. The Board of Supervisors of Waukesha Co., even if subsequent reflection had raised some doubt in my mind as to the conclusions of the judgment in that case; for it is to be borne in mind that the legislature, in the recent revision of the statutes, retained the law of 1854, after it had been in operation some years, which would not have been done, if the system of taxation therein established, when applied to plank and railroad companies, had been considered unjust and unfair by the people of the state.
Besides, as a practical measure, it may be found difficult to frame a law which subjects this kind of property to the same mode of assessment and taxation, in the various towns and counties, as are applied to other property, and which will not be liable to a great deal of fraud and injustice in its administration. Where, for instance, under our present system,
According to my understanding of section 1, Article 8, of the constitution, it was perfectly competent for the legislature to prescribe the manner of taxing railroad and plank road companies, and the principle of uniformity in taxation would not be violated so long as the same rule was applied to all of that class or description of property in the state.
In the case of Knowlton vs. The Board of Supervisors of Rock County, 9 Wis., 410, I gave my views upon the provision of the constitution under consideration. It is unnecessary to repeat what I then said as to the taxing power of the legislature, and the limitations placed upon it by this section. I only propose making a few observations upon the construction given this section by the majority of the court. And it appears to me, that the signal error in that construction is, in supposing that the object and indent of the section were to secure equality in the burdens of taxation, and that its design was to prevent the legislature from discriminating between the different kinds or classes of property, in imposing taxes. It is very apparent that the section consists of two clauses, which essentially modify and control each other.
I believe, since the origin of the state government, a certain amount of personal property, burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, and public property, used exclusively for any public purpose, have been exempt from taxation. If the rule of uniformity means equality in the burdens of taxation, how can these exemption laws be sustained ? If I have personal property to the amount of two hundred dollars, is it equal to exempt that from the burdens of taxation, but impose those burdens upon my more fortunate neighbor, who has three hundred dollars worth of personal property ? If I pay a state tax upon my homestead, does not equality require tliat the public or corporate property of the several counties, cities, villages, shool districts, and especially the property of the various literary, benevolent, charitable, scientific and religious societies, should also pay a state tax ? And
If the legislature can exempt railroads from taxation on the ground of public property or convenience, can it not say- that they shall pay one per centum, of the gross earning of their respective roads, into the state treasury in lieu of all taxes ? Does not the greater power include the less ? I have no doubt but it is entirely competent for the legislature to make these various exemptions; because I do not suppose the rule oí uniformity necessarily implies equality in the burdens of taxation. In imposing taxes the legislature may classify property and the principle of uniformity will be preserved so long as the same class of property is subject to the same rule of taxation throughout the district for which the tax is raised. With any other construction, I am not able to give full and proper effect to the last clause of the section.
I think the motion to quash the writ in this case should be overruled.