Lead Opinion
By the Court,
This action was brought by the plaintiffs to restrain the sale of their lands for taxes. The
The plaintiffs claim the act to have been unconstitutional for two reasons. First, because it would leave the two assembly districts, which by the previous apportionment law were composed, one of the city of Eacine, and the other of the towns of Eacine, Caledonia and Mt. Pleasant, not bounded by county, town, precinct or ward lines, as required by section 4, art. IY of the constitution. This objection assumes that it was incompetent for the legislature to alter the assembly districts until the time for the next apportionment, as prescribed by the constitution, and this assumption is necessary to the validity of the objection. For if the assembly districts might be altered, and if by the annexation of the tracts in question to the city, they thereby became a part of the city to all intents and purposes, then they would be a part of the assembly district composed of the city, and cease to be a part of that composed of the towns. So that both districts would still be bounded by town lines, those lines being different, however, from what they were when the districts were organized. The validity of this objection depends, therefore, on the question whether it is within the power of the legislature, by any means, intermediate two apportionment laws, to transfer any part of the territory in one assembly district to another.
It has been held in Massachusetts and New York, under their constitutions, that this could not be done. 6 Cush., 575, 578; 2 Gray, 84; 80 Barb., 849. But the constitution of New York, after providing for an enumeration of the people and an apportionment of representatives at stated periods, expressly provides that “ the apportionment and dis
But in our constitution there is no express prohibition against an alteration of assembly districts. And whatever limitation exists upon the power of the legislature in that respect, is to be derived from the general scope and objects of the provisions of the constitution concerning the apportionment of senators and representatives. But it may well be said that these furnish such a limitation, and that when the instrument provides for an apportionment and organization of districts once in five years, this implies that it shall not be done at any other time. This would seem clear, with respect to a general apportionment; and perhaps the same implication would extend to any partial re-organization of assembly or senate districts, by any law passed directly for that purpose. Whether it would or not we shall not now decide, but shall assume for the purposes of this case that it would.
But assuming that, we still think the implied prohibition does not extend to such changes in these districts as may result incidentally from the exercise of the acknowledged power of the legislature to organize counties, towns and cities, and change the boundaries of such as are already organized. Of the existence of this power there is no-question. The constitution imposes no express limitation upon it material to this inquiry. The occasions for its exercise are constant and frequent, having no relation to or connection with the stated periods prescribed for apportionment. And we think the provisions upon the latter subject should be deemed to have been adopted in contemplation of the existence of this power, and that therefore the implied prohibi-
This conclusion may seem liable to the objection of permitting that to be done indirectly which could not be done directly. But it really is not so, if we are right as to the extent of the implied prohibition to be derived from the provisions concerning apportionment. Eor then the prohibition included only a direct re-organization of these districts, and left them subject to such incidental changes as might occur by changes in the cities, towns or counties so constituting them. This qualified prohibition may well exist in connection with the intent to leave the other power unimpaired. And when the framers of the instrument carefully avoided inserting any express prohibition, like that in other constitutions, we do not feel warranted in extending an implied one, so as to restrict an acknowledged power of the legislature, entirely independent of the subject matter out of which the implied prohibition arises. This conclusion is supported by the opinion of STRONG, J., in Rumsey vs. The People, 19 N. Y., 41, and by the dissenting opinion of Allen, J., in Kinney vs. Syracuse, 30 Barb., 368, which we think would have been adopted by the whole court in that case, if their constitution had been similar to ours.
Nor do we think any valid argument against it can be derived from the schedule to the constitution, by which the first senate and assembly districts were established. In section 12 it is declared, that the town of Centre with others in Eock county should form an assembly district, “provided that if the legislature should divide the town of Centre, they might attach such part of it to the district lying next north, as they should deem expedient.” At the close of the section is the following provision: “ The foregoing districts are subject, however, so far to be altered, that where any new
It might be said that the power of making certain specific changes being expressed, that of making all others was ex-eluded, and that these clauses assume the necessity of a specific authority to make such changes in the districts as might result from organizing towns or dividing them. This argument would undoubtedly be good, with respect to districts thus established by the constitution itself. The provisions allowing such changes, were, it would seem, introduced for the reason that it might otherwise be said that districts which the constitution had itself prescribed, could not be changed by the legislature. Therefore they expressly allowed those districts to be changed incidentally, in the exercise of the power of dividing and organizing towns. This is a recognition of the necessity of such a power. Yet the instrument contains no provision for even such changes, in respect to districts to be thereafter established by the legislature. This can only be accounted for upon the supposition that it was assumed that no express authority was necessary to authorize such changes. The express power of change being confined, therefore, to the districts established by the constitution itself, the implied exclusion extends only to them.
We are therefore of the opinion that it is competent for the legislature to change incidentally the boundaries of assembly districts, in exercising its power to change the limits of cities, towns, &c.; and that if a part of a town in one district is annexed to a city which constitutes another, unless there be some exception or reservation in the law itself, it becomes a part of such city for all purposes for which the legislature could annex it. So that the previous law constituting that city an assembly district would apply to everything that became absolutely a part of it, just as an incum-brance upon land attaches to subsequent improvements upon it, which become a part of the realty. It follows that we should not hold the law unconstitutional on account of the first objection.
The second objection is that the act provides that the ag
The first section of the act (chap. 83, Pr. Laws of 1856) provides that the tracts in question shall be annexed to the city. The second defines the new boundaries of the city, and then follows a proviso that the farming and agricultural lands annexed should be exempt from certain taxes, and should be taxed for city and ward purposes only at the rate of one half of one per cent. There is no doubt that in many instances, by the annexation of farming lands to a city, hardships are inflicted upon their owners by the increased rates of taxation to which they are subjected. If they are annexed, they must be taxed as other lands in the city, and that is a matter proper to be considered by the legislature in determining whether they shall be annexed. In this act it is evident the legislature had it under consideration, and that they annexed these lands with the idea that they might protect them against such hardships by a proviso for a less rate of taxation. The proviso was clearly intended as a compensation for the annexation, and stronger language could not well be selected to show that the legislature intended the one to be subject to the condition stated in the other, and that they would not have annexed these lands unless they had
It follows that the lands in question were not a part of the x x city of Eacine, and that the taxes sought to be resisted were illegal.
The judgment of the circuit court is affirmed, with costs.
Concurrence Opinion
While I concur in the decision that the judgment of the circuit court in this case should be affirmed, I place my opinion upon somewhat different grounds from those assigned by Mr. Justice Paine, in the opinion filed by him. According to my view of section one, article eight of the constitution, it was competent for the legislature to provide that farming and agricultural lands within the corporate limits, should be subject to a different rate of taxation for municipal purposes from that which applied to other real estate in that city. My reasons for this construction of the constitution have been stated in the cases of Knowlton vs. The Board of Supervisors of Rock County, 9 Wis., 410, and The Attorney General vs. The Winnebago Lake and Fox River Plank Road Co., 11 id., 35, and need not therefore be re-peated_here. Holding section two, chapter eighty-three of the Private Laws of 1856, to be a perfectly valid enactment, it would follow that the taxes mentioned in the pleadings were unauthorized and void, because they were levied in violation of that section. The majority of the court, however, hold the provision in this section, which declares that the lands annexed by the act which should be used exclusively for farming or agricultural purposes, should not be taxed exceeding one half of one per cent, for any city or ward purpose, void; and further that this proviso is so connected with and dependent upon that part of the act annexing these lands as to show that the legislature would not have made such annexation except upon the condition that they should be taxed the above rate, and that this was the consideration or compensation for the annexation. I do not doubt the correctness of the rule, that where the parts of a statute are so dependent on each other as to warrant the be-