297 N.W. 262 | Iowa | 1941
Lead Opinion
DISSENT: Miller, Stiger, and Wennerstrum, JJ.
The taxes for which refunds are sought were paid by plaintiff-appellee's assignors for the years 1934, 1935, and 1936. These taxes were excessive because of the failure of the county auditor of Crawford county, in computing the tax rate, to deduct from the total budget requirements the tax to be derived from moneys and credits in compliance with section 7164, Code, 1935. See Hewitt Sons v. Keller,
"Computation of rate. When the valuations for the several taxing districts shall have been adjusted by the several boards *251 for the current year, the county auditor shall thereupon apply such a rate, not exceeding the rate authorized by law, as will raise the amount required for such taxing district, and no larger amount.
"Provided that the county auditor shall, in computing the tax rate for any taxing district, deduct from the total budget requirements certified by any such district all of the tax to be derived from the moneys and credits and other moneyed capital taxed at a flat rate as provided in section 6985 and shall then apply such rate to the adjusted taxable value of the property in the district, necessary to raise the amount required after the deductions herein provided have been made."
The record before us shows that in only 13 counties did the auditor, in computing the tax rate for 1934, 1935, and 1936, deduct the tax to be derived from moneys and credits as required by the above section. In the remainder of the 99 counties, including Crawford, the auditor failed to make this deduction for one or more of the three years in question. Because of this failure taxes were collected in excessive amounts in more than 80 counties. In some of the counties where there was no compliance with section 7164, some refunds of the excesses were made. The record indicates, however, that in most of such counties no refunds were made.
The Forty-eighth General Assembly, after the decision of this court in Hewitt Sons v. Keller, supra, attempted to legalize the taxes collected in all counties where the auditor did not comply with section 7164, by the passage of chapter 250, Acts of the Forty-eighth General Assembly, reading as follows:
"All taxes levied, assessed, or collected wherein the county auditor in computing the tax rate failed to deduct from the total budget requirements the tax to be derived from moneys and credits and other moneyed capital during the years 1934, 1935, 1936, and 1937, as defined by section seventy-one hundred sixty-four (7164) of the Code, are hereby declared legal and valid."
This legalizing act went into effect during the pendency of the present suit and was pleaded by appellant Board as a complete defense. By reply, appellee challenged the constitutionality of the act. The trial court held the legalizing act was not of *252 uniform operation in violation of the constitutional provisions hereinafter mentioned, that it therefore constituted no defense to appellee's suit and ordered the refunds. The Board of Supervisors has appealed. There is presented to us the single question of the constitutionality of the legalizing act.
[1] I. The power to declare legislation unconstitutional is one which courts exercise with great caution, and only when such conclusion is unavoidable. State ex rel. Welsh v. Darling,
[2] II. Appellee claims the act (chapter 250, Forty-eighth General Assembly) is unconstitutional in four respects. The principal contention is that it is not of uniform operation throughout the state, in violation of section 6, Article I, and section 30, Article III, of the state constitution. The trial court so held. Section 6, Article I, provides: "All laws of a general nature shall have a uniform operation". Section 30, Article III, provides: "The General Assembly shall not pass local or special laws in the following cases: For the assessment and collection of taxes * * * In all the cases above enumerated, * * * all laws shall be general, and of uniform operation throughout the State".
We do not understand appellee to contend that the act in question is a local or special law. Is it of uniform operation? That is the vital question. It may at once be conceded that the act does not operate alike upon all citizens of the state. This court has repeatedly held, however, that uniformity, in the constitutional sense, does not depend upon the number of citizens affected or within the scope of operation of the law in question. A large amount of legislation is not uniform in the extent of its application. Smith v. Thompson,
It has been held more than once that a law is of uniform operation throughout the state even though at the time of its adoption its practical application is limited, for example, to a single municipality. See State ex rel. Welsh v. Darling, supra, and cases cited at page 559 of
It is also well recognized that the legislature exercises a wide discretion in determining classifications to which its enactments shall be made applicable. State ex rel. Welsh v. Darling, supra, at page 556 of
Appellee does not argue that the law is not uniform because of any language in the act itself. His entire argument is based on the facts (1) that in 13 of the 99 counties the auditor for the three years in question observed the requirement of section 7164 by deducting the moneys and credits tax while in the remaining counties this requirement was ignored for one or more of the three years, and (2) that in some few counties where excessive *254 amounts were collected, refunds were made to some taxpayers. If every county auditor in the state had failed to make the deduction for the years in question, and if no refunds had been granted by any of the counties, then there would be no basis whatever for appellee's claim of nonuniformity. His contention, in substance, is that a general curative act cannot be passed after advantages have accrued to some citizens before the passage of the act.
The act in question operated in the 80-odd counties where the auditor failed to comply with section 7164. We hold that the legislature had the power to pass this act, that it was of uniform operation in the constitutional sense and that the distinguished trial court erred in holding to the contrary. We think our conclusion is amply supported by prior decisions of this court.
In an early case, Boardman v. Beckwith,
"The power of the legislature to pass acts of this character, conducive as they are to the general welfare, and based upon considerations of controlling public necessity, is, in our opinion, undoubted."
In Von Phul v. Hammer,
"It is quite true, however, that by the enactment of that section, which is a general law of uniform operation, there may result a consequence, to wit, a want of uniformity of city charters, which was one of the evils that the particular clause of the constitution under consideration was designed to remedy. But the clause itself is not, nor can it by any fair construction be made to be, so far-reaching as to prevent such consequences. For instance, under the general incorporation law for cities and towns * * * the same power of taxation * * * is given alike to all cities of the same class. But it is quite probable that no two cities in the state exercise the power in precisely the same manner. Each provides by its own ordinances the manner in which it will exercise the power. And surely it cannot be claimed that all such laws and ordinances are void, under article 3, section 30, for want of uniformity. Many other illustrations might be given, but they are unnecessary." (Italics supplied.)
Haskel v. Burlington,
"As such [special charter] cities were few, at the time of the passage of this act, and hence but few cities were affected by its provisions, it is claimed that the statute is local and special, and has not a uniform operation throughout the State. This position is believed to be unsound. * * *
"So that wherever cities are found, in whatever portion of the State, be they few or many, which were incorporated under special charters, to them the law applies. And it applies to all cities in the State falling within the class specified, and, hence, is not local nor special, but of uniform operation." *256
Iowa Railroad Land Co. v. Soper,
"It is very clear that if every municipal corporation within the State had levied taxes to pay judgments, which levies had been in excess of the maximum amount fixed by law, the act under consideration would have applied to them all alike. In other words, if the condition described in the act had existed in every corporation in the State, the act would have been applicable to them all."
In Chicago, R.I.P.Ry.Co. v. Independent District of Avoca,
The above cases are early ones. None of them, however, is an isolated decision; they have all been repeatedly cited with approval by this court even in very late pronouncements. There are three recent cases in Iowa which to our minds present practically the identical situation, at least on principle, to that now before us. An emergency tax levy made in some but not all counties of the state had been held illegal because of a defective title of the authorizing statute, known as the local budget law. (See Chicago, R.I.P.Ry.Co v. Streepy,
"The legalizing act has no effect whatever, except upon some municipality as defined by the Budget Law, which had made an assessment and levy under color of authority derived from Section 373 of the Code. * * * There is no lack of uniformity in its operation. It has been the universal holdings of this court that a statute of this kind and character is not violative of the aforesaid sections of the Constitution. See Boardman v. Beckwith,
Counsel for appellee in both oral and written argument made strenuous efforts to distinguish the above decisions, particularly the Iowa Railroad Land Company case in 39 Iowa and the Rock *258
Island Railroad cases in 211 and
Of course, it is true that a legalizing statute can cure only such action as the legislature could have authorized. Nevertheless, we cannot agree that counsel's attempt to distinguish the above decisions is sound. What counsel overlook is that the act in question operates with fully as much uniformity throughout the state as did the acts held valid in the Iowa Railroad Land Company and Rock Island Railroad cases. It is true the act now before us does not attempt to legalize an excessive levy made by a taxing body, but a mistake of the auditor in computing the tax rate. But the legislature has just as much power to prescribe the method by which auditors are to compute tax rates as to authorize taxing bodies to make levies. Let us assume that the taxpayers of Crawford county by reason of the failure of the auditor to deduct moneys and credits tax in computing the tax rate for 1936 paid in excessive amounts totaling $5,000. Now let us assume that the Board of Supervisors had made an excessive levy of $5,000 for some purpose not authorized by law. Appellee concedes, as indeed he must under the decisions above referred to, that the excessive levy could be legalized, even though as a consequence taxpayers of Crawford county would be forced to pay a higher tax than in some county where the excessive levy had not been made. It seems to us that the practical effect of collecting $5,000 because of an excess levy and collecting $5,000 excess because of the failure of the auditor properly to compute the tax rate is identical. Also, that the results of curative acts curing the two forms of illegality are identical so far as uniformity of operation is concerned.
We have given careful consideration to the authorities cited by appellee in support of his claim of nonuniformity in the operation of the act under consideration. None of them is in *259
point nor has but remote application to the present controversy. Only two of the Iowa cases cited by appellee anywhere in his briefs involve curative acts: Independent School Dist. v. Burlington,
[3] III. The findings of the trial court indicate that the principal ground on which it held the act unconstitutional is that it was nonuniform in operation. Appellee contends, however, the act violated the constitution in three other respects. The second attack upon the act is that it is in effect a delegation by ratification to county auditors of the legislative power of levying taxes in violation of section 1, Article III, of the state constitution pertaining to distribution of powers between the three branches of government. It is to be noted that this contention is somewhat inconsistent with appellee's argument that the type of illegality sought to be cured by the present act differs from that involved in the decisions reviewed in the preceding division of this opinion. His claim at this point is that what really resulted from the error of the auditors was an illegal tax levy which he concedes, in an attempt to avoid the force of our own decisions, the legislature had the power to cure.
The attorney general concedes that tax levying, which is legislative, cannot be delegated to county auditors. We do not agree that a legalizing act amounts to a delegation of the power of taxation to a county auditor merely because it places its stamp of approval on the erroneous action of more than 80 county auditors of the state in the computation of the tax rate. Undoubtedly, as we have previously observed, the legislature has the power from time to time by general statute to change the method to be *260
used by county auditors in computing tax rates. Indeed, the legislature by amending section 7164 changed the existing method of computing the rate by providing for the deduction of the tax on moneys and credits. It was the violation of this prescribed method that led to the curative enactment. It is elementary that "A curative act may cure or legalize any act which the general assembly could, as an original question, have authorized." Chicago, R.I.P.Ry.Co. v. Rosenbaum,
[4] IV. It is next contended that the curative act amounts to a denial of the equal protection of the laws and grants to citizens in the counties where the auditor made the required deduction for moneys and credits, and in counties where refunds were made, privileges and immunities which were denied to taxpayers in the counties in which the curative act was operative and no refunds were made, in violation of section 1 of the fourteenth amendment to the federal constitution and section 6, Article I, of the state constitution. Appellee cites but two Iowa cases (along with one case from another jurisdiction) in support of this contention: State v. Garbroski,
The argument in support of this attack is practically the same as the argument in support of appellee's claim that the act is not of uniform operation. What we have said on the subject of uniformity and the authorities discussed in division II of this opinion sufficiently answer this contention. If the legislature had the right, as we hold it did, to enact this statute which was applicable in all of the 80-some counties where there *261 was no compliance with the law in computing the tax rate, no taxpayer in any of those counties can be heard to complain because of claimed denial of privileges or immunities or equal protection of the law.
[5] V. Appellee's remaining claim of unconstitutionality is that the act violates section 7, Article VII, of the state constitution which requires that every law which imposes, continues, or revives a tax must distinctly state the tax and the object to which it is to be applied and it shall not be sufficient to refer to any other law to fix such tax or object. The basis for the argument in support of this contention is that the obvious effect of chapter 250, Acts of the Forty-eighth General Assembly, is an attempt to levy a tax. It is substantially the same argument that is made in support of the somewhat inconsistent claim that it constitutes a delegation to the county auditor of the power to levy a tax. This question was passed on contrary to appellee's contention in Chicago, R.I.P.Ry.Co. v. Rosenbaum, supra. The court there recognizes under the authority of Youngerman v. Murphy,
Some other questions have been argued. We have given them all careful consideration. The foregoing is determinative of the case. We are unable to find that chapter 250, Acts of the Forty-eighth General Assembly, is such a clear and palpable violation of the constitutional provisions upon which appellee relies that we can conscientiously hold it to be invalid. Since our conclusion is contrary to that reached by the trial court, the judgment is reversed. — Reversed. *262
HALE, C.J., and MITCHELL, SAGER, BLISS, and OLIVER, JJ., concur.
MILLER, STIGER, and WENNERSTRUM, JJ., dissent.
Dissenting Opinion
The sole question presented by this appeal is that of the constitutionality of chapter 250 of the Acts of the Forty-eighth General Assembly, section 1 of which provides as follows:
"All taxes levied, assessed, or collected wherein the county auditor in computing the tax rate failed to deduct from the total budget requirements the tax to be derived from moneys and credits and other moneyed capital during the years 1934, 1935, 1936 and 1937, as defined by section seventy-one hundred sixty-four (7164) of the Code, are hereby declared legal and valid."
Section 7164 of the Code, 1935, provides as follows:
"When the valuations for the several taxing districts shall have been adjusted by the several boards for the current year, the county auditor shall thereupon apply such a rate, not exceeding the rate authorized by law, as will raise the amount required for such taxing district, and no larger amount.
"Provided that the county auditor shall, in computing the tax rate for any taxing district, deduct from the total budget requirements certified by any such district all of the tax to be derived from the moneys and credits and other moneyed capital taxed at a flat rate as provided in section 6985 and shall then apply such rate to the adjusted taxable value of the property in the district, necessary to raise the amount required after the deductions herein provided have been made."
In Hewitt Sons v. Keller,
Appellee asserts that said statute is invalid because it violates sections 1, 6 and 9 of Article I, section 30 of Article III, and section
The facts, pertaining to the constitutional questions herein, were stipulated. They are reviewed by the trial court as follows:
"The record as made in this case establishes that in a few counties of the state the law relative to the assessment and collection of the taxes in question had been complied with. In several of the counties there was a failure to make deductions of moneys and credits for one or more of the years involved; there were counties where the law was complied with in one or more of the years and not complied with in others; refunds were made in some of the counties to taxpayers who filed claims or were judicially determined entitled to them; in some counties where refunds were allowed before the curative act went into effect, denials of refunds have since been made. There are cases where a taxpayer owned land in counties where refunds in part have been made as well as in counties where refunds have been denied."
In holding that the statute is invalid, for the reasons asserted by appellee, the court states:
"Violations of the law with respect to deducting moneys and credits from the budget requirements have therefore resulted in the imposition of higher taxation in many of the taxpaying districts of the state than in the districts where the law was in fact complied with. *264
"It seems to the Court that to sustain the act of the legislature in its undertaking to legalize and validate the taxes in question necessarily does violence to the principle of uniformity which under our law is essential to legal taxation. The legislature can do, through the instrumentality of a curative act, no more than it could do by original enactment. An original legislative act imposing the unequal non-uniform taxation throughout the state necessary to bring about the conflicting situation now existing would, in the judgment of this court, be invalid. The legalizing act seeking to make valid the illegal and unequal taxes imposed is likewise invalid. The legalizing act makes no attempt to equalize the inequalities of taxation and place the taxpayers on a common level, but its purpose is to declare valid the unlawful collection of taxes imposed on certain taxpayers, whereas other taxpayers similarly situated are not subjected to such illegal tax.
"This court is satisfied that the act in question cannot be held to have legalized and made valid the taxes in question, and the plaintiff's contention as to the invalidity of the act as stated in plaintiff's petition is, and will be, sustained on the grounds therein stated."
I think that the position taken by the trial court is right. In stating my reasons for such conclusion, it seems desirable to first consider certain fundamental principles applicable to legalizing acts.
The power of the legislature to adopt a legalizing act is concisely stated in the case of Chicago, R.I. P. Ry. Co. v. Rosenbaum,
The corollary to the above rule is also true. The legislature may not accomplish, through a legalizing act, that which it could *265
not authorize originally; it cannot do indirectly that which it cannot do directly. Cedar Rapids Water Co. v. Cedar Rapids,
It is also fundamental that, where a result might be originally accomplished by a local or special law, that result may also be accomplished through a legalizing act which is a local or special law. The following cases are illustrative of this rule: Iowa Electric L. P. Co. v. Grand Junction,
The corollary to the rule just stated is also true. Where the result to be accomplished would require a general law in the first instance, a legalizing act, which undertakes to accomplish that result, must be a general law, of uniform application throughout the state. Chicago, R.I. P. Ry. Co. v. Rosenbaum, supra; Cedar Rapids Water Co. v. Cedar Rapids, supra; Stange v. Dubuque,
The taxes involved here include those for state and county purposes. Section
"The General Assembly shall not pass local or special laws in the following cases: For the assessment and collection of taxes for State, County, or road purposes; * * * In all the cases above enumerated, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State * * *"
The result to be accomplished by chapter 250 of the Acts of the Forty-eighth General Assembly was one which could be accomplished, if at all, only by a general law, of uniform *266
operation throughout the state. Warren v. Henly,
In determining whether or not the trial court was right in holding that chapter 250 of the Acts of the Forty-eighth General Assembly is unconstitutional we are not concerned with the rules applicable to most legalizing acts, which are, and properly so, local or special laws. We are concerned solely with the rules applicable to legalizing acts, which, because of the result which they seek to accomplish, must be general laws of uniform operation throughout the state.
Under the record herein, the trial court was clearly right in finding and determining that the result, which chapter 250 of the Acts of the Forty-eighth General Assembly seeks to accomplish, is an unequal and nonuniform plan of taxation.
The fact that the inequality results from a difference in the tax rates between counties does not avoid the vice of inequality from a constitutional standpoint. In the case of State v. Meek,
"Now, the constitutional guaranty with respect to uniformity is not restricted to county lines, for the express declaration is that the valuations shall be `equal and uniform throughout the state.' Therefore when this court held in the case just cited that a taxpayer had the right to compel the reduction of his assessments to conform to the assessments of other property in the county, it necessarily follows therefrom that the citizens of one county are entitled to the same remedy to compel such reduction as would afford equality and uniformity with assessments of property in other counties in the state."
Appellants contend that the existence of inequality is immaterial because the law is general in its terms and operates uniformly on all that are affected thereby, relying upon our holding in Iowa Railroad Land Co. v. Soper,
"In this case the act of the General Assembly operated upon a particular condition; that is, in all municipal corporations *267 where they have, before the passage of the act, levied special taxes in excess of the maximum allowed by law to pay judgments, the consequences which are named in the act follow, namely, such taxes are declared legal and valid. As in Haskel v. The City of Burlington, supra, the act applied `to all cities in the State falling within the class specified, and hence was not local nor special, but of uniform operation.' So, in this case, the act applies to all `counties, school districts, or other municipal corporations,' falling within the conditions mentioned in the act; and it is, therefore, not a local or special law, but general."
Appellants also rely upon similar pronouncements in Chicago, R.I. P. Ry. Co. v. Streepy,
In the Soper case, certain judgments had been recovered against various municipal corporations which had levied taxes to pay the same, only to find that they had no authority to levy the taxes. The legislature legalized such levies. The classification, under which the law operated, was a proper one. No inequality between taxpayers, similarly situated, resulted. There was no violation of the constitution in that regard.
In the Streepy case, certain taxes had been levied under authority of section 64, chapter 4, Acts of the Fortieth General Assembly, Extra Session. In Chicago, R.I. P. Ry. Co. v. Streepy,
By reason of the foregoing, it readily appears that the cases, upon which appellants rely, are not in point. They are made controlling here only by giving to them an effect which was not intended and which is contrary to decisions of this court that appear to be controlling here. *268
Appellants contend that the Soper case, considered with the Streepy and Rosenbaum cases, establishes the principle that, if a legalizing act is general in its terms and appears to operate uniformly upon all persons specified as falling within the conditions of the act, the constitutional requirement of uniformity is met regardless of the facts. The rule, as stated in such cases, was proper when applied to the facts of each case. But it is an entirely different thing to say that the rule applies irrespective of the facts of a particular case.
An illustrative case is that of State ex rel. West v. City of Des Moines,
"Had the act in question been made applicable to all cities of over thirty thousand inhabitants, without a qualification that, under known facts, would exclude its operation as to any other such city, the case would be different. * * * The act is singularly specific in this respect, not even permitting any chances as to what might be the actual population of other cities but making it dependent on the census return of 1885, known at the time the act was passed, which clearly proves that only the city of Des Moines was intended as the subject of such legislation. In such a case, even though the language of the actis general, it is special legislation." (Italics supplied.)
Under the rule, contended for by appellants, the above quotation is an erroneous statement of the law. I am satisfied that the court was right in the pronouncement above quoted and that it is the appellants that are in error. The mere fact that the language of the statute may be in general terms does not make it a general law if in fact it is not.
Section
It is important to note that chapter 250 of the Acts of the Forty-eighth General Assembly does not affect the application of section 7164 in those counties where the law was complied with. As to such counties, the general law remains in full force and effect. The levies there made were and continue to be legal. It is only in those counties where the auditor violated section 7164 that said chapter 250 undertakes to release the auditor from the requirements of section 7164. The situation is directly analogous to that presented in the cases of Cedar Rapids Water Co. v. Cedar Rapids, supra, and Independent School Dist. v. Burlington, supra. In the Cedar Rapids case, we state (
"But the effect of the legalizing act under consideration, in so far as it is applicable to the grant of a franchise beyond the limit of twenty-five years, is no more or less than an attempt to except or release the city of Cedar Rapids from the operation of a general statute which remains in full force against all other municipalities of the state, and thus accomplish by the device of a legalizing act that which the legislature could not do by direct enactment. This, we have already held cannot be done. Independent School Dist. v. City of Burlington,
In the Burlington case, we state (
"It is insisted that this act of the legislature is repugnant to that part of section 30, art. 3, of the constitution of this State, which provides that the general assembly shall not pass local or special laws where a general law can be made applicable. We think the position is well taken. Suppose that the act of 1878 had provided that the exception therein contained should not *270 apply to the city of Burlington. There can be no question that the act would have been unconstitutional, because not general and uniform in its operation. Now this legalizing act is an attempt to do indirectly what cannot be done directly."
In determining whether a tax statute operates uniformly throughout the state, we do not look to the individual taxes but rather to the principle or plan of taxation. This rule is well stated in the case of Herriott v. Potter, supra (
"Section 30, art. 3, of the constitution, requires that all laws for the assessment and collection of taxes for state, county, and road purposes shall be general and of uniform operation throughout the state. This refers to the principle or plan of taxation, and not to specific taxes. `It means that all individuals and all classes shall be uniformly taxed.' A different tax may not be exacted from one person than from another, unless differently situated; nor from a designated group of persons than from another, unless difference in condition or relation or situation suggest and justify such difference. Nor may different burdens be imposed on property of the same kind in like situation. Otherwise the rule of uniformity exacted by the constitution would be destroyed. `The rule means that all individuals and all classes must contribute uniformly with like individuals and like classes to the burden of taxation.' Warren v. Henly,
When the legislature undertakes to establish a plan of taxation by which one rule applies in certain counties and a different rule in other counties of the state, the principle or plan of taxation thereby developed is not of "uniform operation throughout the State". As stated by the trial court, if the legislature had attempted originally to provide for such an unequal and nonuniform principle of taxation, the legislature would obviously violate section 30, Article III, of the constitution. The legislature cannot accomplish by a legalizing act that which it could not authorize in the first instance. It cannot do indirectly that which is prohibited by direct action.
It is suggested that the legislature may have presumed that all county auditors had violated the provisions of section 7164 *271
and, therefore, that the law would operate uniformly. We cannot indulge in any such presumption. In the case of State v. Meek, supra, the court states (
"No presumption can be indulged that all of the public officials of the state in the various counties who have to do with the assessments of property for taxation will knowingly violate the duties imposed upon them by law."
The record shows that some county auditors did violate the law. The legalizing act demonstrates that the legislature knew that some violations had occurred. The record shows that some county auditors obeyed the law. The only presumption we can indulge in is that the legislature assumed the facts to be as they were, some county auditors violated the law while others obeyed it. The legalizing act, therefore, must be given the effect which the facts show it produced.
As a result, there is a plan of taxation which is unequal and nonuniform. Such inequality and nonuniformity cannot be justified upon any theory heretofore established by this court. Suppose said chapter 250 had specified by name the counties in which the auditor violated section 7164 and had provided that, as to such named counties, section 7164 should not apply for the years 1934, 1935, 1936 and 1937, but, as to all other counties, section 7164 should be valid and binding for those years. Could anyone contend that such a plan of taxation would be of uniform operation throughout the state? But the legislature cannot do indirectly that which it cannot do directly.
The situation herein differs from that presented in the Soper, Streepy and Rosenbaum cases. In those three cases, the legalizing act applied to all counties where the taxes were levied. The plan of taxation was of uniform operation throughout the state. Here taxes were levied in every county of the state. The legalizing act seeks to establish one law for some counties and a different law for other counties. If such an unequal and nonuniform plan of taxation is to be sustained, many foreboding evils might result. They are the very type of evils which the constitution seeks to prevent. The constitution is the supreme *272 law of the land. Where legislation fails to conform to the limitations therein fixed, it is our duty to declare such legislation void. By so doing, the constitution is supported, maintained and preserved as the supreme law of the land.
I think the decree is right. I would affirm.
I am authorized to state that Justices Stiger and Wennerstrum join in this dissent.
