161 Wis. 188 | Wis. | 1915
Concurrence Opinion
The following opinion was filed June 23, 1915:
(concurring). Upon an equal division of the members of the court I was called upon to cast the deciding vote in this case. I think the interests of the bench and bar and of the public require some more explicit statement of the reasons upon which my conclusion rests.
1. I first inquire, What is the nature and purpose of the statute under consideration, sec. 1042;, Stats. 1913 ?
The statute does not expressly include rights in and to ores or minerals excepted from a grant of land. Where a grant of this kind is drafted by a competent person and it is desired to separate the ownership of the ores and minerals from the ownership of the land for other purposes, this is accomplished by an exception from the grant of the ores and minerals together with a reservation of the right to enter upon the land, explore and mine for such ores. There are two reasons why this statute should be taken to include exceptions and express grants as well as reservations, although the former is not within the express words of the statute: (a) because there is a decision of this court relative to construction of deeds which holds that, when it is apparent from the subject matter and from other provisions in the deed that such was the intention of the parties, an exception may be created by language like that used in this statute, (b) In order to
The statute carries with it on its face some indications of a purpose to accomplish, under the guise of a taxing law, the result of extinguishing all right or title in ores or minerals in or under land outstanding' in a third person separate from the surface rights and to bestow such rights upon the person who may for the time being own the surface rights to the land. But a statute with this interpretation would not meet the constitutional tests above mentioned as strongly as a statute for the purpose of raising revenue by taxation, (a) For centuries it has been common law that there may be different estates and interests in the same piece of land, — tenancy in common, life estates, estates for years, remainder, reversions, easements, limited fees, rights of piscary or turbary, title to standing and growing timber, rights to quarry, or rights to minerals in or under the surface. This precludes any theory that such multiplication of estates in a single tract of land is detrimental to public welfare so as to call for any exercise of the police power. On the contrary it has been generally agreed by lawyers, statesmen, and publicists that any policy which increases the number of proprietors in the commonwealth is beneficial rather than injurious in its tendency, (b) Underhand or improper purposes are not to be attributed to the legislature.
First conclusion. So that in deference to the rule of constitutional law which requires us to hold every statute constitutional unless we are satisfied beyond a reasonable doubt to
2. I do not rest this case solely on the question of the validity of the statute under sec. 1, art. VIII, Const, of Wis. I also consider its validity under the Eourteénth amendment to the paramount federal constitution, (a) because it has been customary in this court to consider these constitutional requirements together. Black v. State, 113 Wis. 205, 89 N. W. 522; State v. Whitcom, 122 Wis. 110, 99 N. W. 468; Lawrence University v. Outagamie Co. 150 Wis. 244, 136 N. W. 619, and cases cited, (b) Recause if it conflicts with the paramount constitution it must fall notwithstanding it might he thought capable of enforcement under our state constitution, (c) It might he well to rest it wholly on the federal constitution. I would have been willing to so rest it and say nothing about the state constitution, out of deference to the minority opinion and to facilitate the review of the decision in the supreme court of the United States' by those hereafter claiming title under this statute.
3. The arbitrary imposition of unequal burdens upon persons between whom no substantial distinction germane to the purposes and objects of the law can be made is forbidden by the state and federal constitutions in matters of taxation as well as in other matters. This distinction or difference necessary to uphold the classification must be one which has some relation to the legal capacity of the person, as infancy, coverture, lunacy, idiocy, alienage, etc., or to the nature and qualities of the property discriminated against, as, for example, dangerous or nondangerous property, or to the proper
By other statutes all sales of real or personal property of a delinquent taxpayer are subject to competitive bidding at "public auction. In the case of the sale of personal property the buyers bid up upon the price, while in the case of land they bid down upon the quantity. The bidding is as truly competitive and as much for the benefit of the delinquent taxpayer in one case as in the other. Under the statute here in review the property mentioned is returned delinquent, advertised for public sale, bidders are invited, and the property treated in all respects, except with reference to the mode of assessment, as other real property. But when the invited bidders come they are prohibited from bidding because they cannot become purchasers. No one but the state or county or the person who owns the remaining interest in the land 'can bid at the sale. Now if this is a taxing statute, the purpose of which is to raise revenue for state expenses, this limi
It having been decided by this court that the requirement that the rule of taxation be uniform is not limited to the mere rate of taxation, I think it follows that the statute in question transgresses this requirement as well as the Fourteenth amendment to the United States constitution. “The rule of taxation” does not, I think, extend to all steps in enforcing collection of the tax. But it does extend to those important steps which are essential parts of the tax proceedings. Collection by demand or collection by enforcement process are such, and it would be intolerable, for illustration, that a certain favored class should have six months in which to pay
4. With reference to the provision making the assessor’s valuation conclusive, I understand that to be conclusive except in case of fraud. That is to say, I understand the rule that fraud vitiates everything obtains here. With this qualification I think that when a duty relating to assessment is' lawfully imposed on a taxpayer which he is given time and opportunity to perform, but which he fails to perform, all who fail to perform that duty constitute a class against which the valuation of the assessor, while not fraudulent, may be made conclusive.
There is another ground of unconstitutionality which I must now mention. The provision for the state advancing money to the county, which then drops out of consideration, taken with the provision that the owner of the remaining interest in the land may redeem within three years and in many cases within a longer time, amounts in practical effect to the state advancing money for this favored person, who has an option to repay' the state the amount advanced with interest and take the property or to let the state keep the property. He has three years or more within which to drill and test the land, and if he finds no ore there he will leave it to the state. If he finds ore he will redeem and become the owner. But if he has not the means to carry on drilling and exploration he will naturally turn the possession of the land for the purpose of drilling and exploration over to a drilling and exploring company which will explore and acquire title to the same. If such company finds ore it will, through the owner of the surface rights, redeem; if not, the exploring company will leave the land to the state. We may question whether a statute requiring the secretary of state to audit' a demand against the state created by statute, which demand amounts to an advance by the state to one owner of a part interest in land to enable him to acquire the interest of another owner in the same land, the state acquiring nothing except interest on its loan or a right to take the ores and minerals in cases where there are none, is valid. I think it is not valid. I think it is appropriating state money for the
Lead Opinion
Does the quoted legislative enactment violate the guaranties of equal protection of the laws contained in the state and federal constitutions, by putting the particular species of real estate in a class by itself and treating the same for public revenue purposes and the owners thereof materially different than other forms of real estate and the owners thereof are treated %
Though the constitutionality of the act in question was challenged by defendant upon several grounds, only those covered by the stated question were considered in deciding the case. It is the opinion of the court, the Chief Justice and Justices Siebeckee and Kebwikt dissenting, that the classification made by such act cannot be justified under even the very liberal rules on that subject, and hence the question must be answered in the affirmative, requiring the defendant’s motion to quash the writ of mandamus upon the ground that such act is unconstitutional to be granted.
By the Gourt. — It is so ordered, and the proceedings dismissed.
Dissenting Opinion
(dissenting). My opinion is that a mining right is a 'property right of such a markedly different character from that of other forms of property that it may properly be the subject of classification, provided the uniformity rule of taxation be not violated. The peculiar character of the property right in question is fully set forth in Gadow v. Hunholz, 160 Wis. 298, 151 N. W. 810.