State v. Chicago & Northwestern Railway Co.

Lead Opinion

The following opinion was filed June 21, 1906:

Maesitall, J.

The question is sharply presented in these-cases as to whether the absolute forfeiture of $10,000 under-sec. 1214, Stats. 1898, applies to a mere mistake of law or fact or both, in respect to the scope of the term “gross earnings,” or any other mere mistake on the part of any railway company, in respect to disclosing, as the law contemplates,, the full amount of such earnings, such mistake not attributable to bad faith or inexcusable negligence, from the standpoint of business conduct generally, — and consequent failure to pay the amount due the state on account of such earnings, without intentional wrong. The learned circuit court decided in the affirmative.

We have not been able to reach a satisfactory conclusion in these cases without taking a broader view of the subject involved than was presented in the briefs of counsel or argued’ orally. Such broader view seems necessarily to extend to- and include matters which may or will be involved in probable, prospective independent litigation. Nevertheless, such matters have seemed to be so closely connected with the present controversy, as regards the meaning of the legislative enactment involved, as to- really form a part of the subject matter in hand, and, in justice to the parties, to require consideration thereof.

Further to illustrate the prime necessity, in the interest of justice, for the wide range our considerations here must necessarily take and the propriety thereof the following may be said: ■

In the narrow view of the subject in hand only a partial construction of the various features of the legislation for taxing railway property by tbe indirect method, a view that would omit considering whether the state may pursue the defendants, efficiently, as to the amounts which they confessedly ought to have paid but did not pay, one result might be the only one that could be reached. In the broader view, necessarily including such capacity to pursue, an opposite conclusion might be the only one that could be reasonably reached. The relations between the state and railroad companies under the license taxing law, the precise nature of the obligations of the latter to the former in respect to the taxes, so called, the question of whether those elements differ from those in respect to an ordinary tax, and, if so, to what extent, and with what result, in one view of the matter might or would, as we shall see, incline the scales of justice one way or the other according as they might be determined.

Obviously, in deciding a question, the court ought to carefully guard against going outside of the particular matter in hand. All questions so far collateral as not necessarily to be included in such matters should be omitted in stating reasons for the final result. Especially when what is said, as here, may relate to questions liable to be vital in controversies which are of themselves appropriate subjects of litigation, and apparently liable in due course to reach the court for consideration, the importance of guarding against expressing opinions in respect thereto calls for the highest degree of care to avoid it. However, like all good rules, that has its exceptions. Necessity creates exceptions to many rules, extending their otherwise quite arbitrary boundaries. Here, only in the light of the true nature of the obligations of railroad companies to the state under the scheme for raising revenue in question, and all remedies of the state which the legislature may reasonably be said to have had in contemplation in adopting such scheme: only in the light of the legislative plan as a whole, can clear warrant be discovered for' reading out of the law a condition of the penal liability under sec. 1214, not there found expressly stated. Tbe language of tbe act is about as plain in its literal sense, as will be seen, as words expressing an idea could well be. In such sense default of a party, whether wilful or innocent, excusable or inexcusable, from a moral standpoint, lays such party liable-, absolutely, for the full penalty mentioned in the statute, and liable in the discretion of the court to further punishment. That seems exceedingly harsh, but if the legislature intended to be that harsh and did not exceed constitutional limitations in that regard, the court has no right to invade its domain by judicially, so to speak, amending the law.

We fully appreciate as indicated that a decision should not, without some good warrant therefor, be broadened out beyond its necessary scope. When the question at issue is important, and is closely connected with somewhat collateral matters, which might, by themselves, constitute an independent matter for decision, and a conclusion in respect thereto would throw much, though not necessary, light upon the right of the particular controversy, and either by its aid a just conclusion would be attainable, when otherwise the result might be different, or the same result might be reached without such solution, though not so satisfactorily in prcesenii, or with so much certainty of such result being permanent by the rule of stare decisis, as through the aid of such solution, the broader view is not only permissible but is often advisable, except in case of known independent pending or impending litigation liable to be affected incidentally thereby. However, when the right of the controversy in hand cannot in any way be vindicated without judicial treatment covering a broad field, including some question or questions liable to be vital to other pending or prospective litigation, justice should not be denied in the former, nor even be jeopardized, either because not attainable at all, or clearly and decisively attainable, without considering and deciding such other question or questions. That does not lead to any unnecessary prejudicial anticipation of .matters wbieb may or probably will come up later. It merely involves an unavoidable solution, for tbe purposes of one case, of questions upon wbieb another may or probably, will turn.

Eully convinced of tbe soundness of tbe views stated, and fully appreciating that tbe broad scope we shall give to tbe matter in band may involve an expression of opinion upon matters vital to controversies yet probable to come before us, but fully believing that it is unavoidable under tbe circumstances, we proceed, convinced that what has been said sufficiently shows that, so far as our conclusion may incidentally indicate a leaning as to such other controversies, tbe happening will be clearly seen to be what it in fact is, an occurrence ex necessitate rei.

Eliminating from tbe law those portions not necessary' to its meaning, as to tbe subject here, and indicating by a parenthesis tbe amendment of 1899, tbe entire legislative scheme appears thus:

Sec. 1211. “Every railroad company . . . shall on or before tbe 10th day of February in each year make return to tbe state treasurer” in tbe manner required by him “a true statement of tbe gross earnings of” its road “for tbe preceding calendar year . . . verified by tbe oath of its secretary and treasurer.”

Sec. 1212. “Each such railroad company . . . shall, on returning such statement, apply for a license to operate the railroad mentioned in such statement, and shall pay the license fee therefor provided in tbe next section; and thereupon (if such statement be approved by tbe railroad commissioner) shall receive from tbe state treasurer a license . . . for the calendar year commencing on tbe first day of January preceding, . . . unless sooner revoked.”

Sec. 1213 specifies the fee as to each road, according to a stated classification, “one half of tbe license fee” to “be paid at the time tbe license issues, and one half on or before tbe 10th day of August in each year.”

Sec. 1214. “If any such railroad company . . . shall neglect to obtain such license or pay tbe license fee therefor or any part thereof” it “shall absolutely forfeit to the state the-sum of ten thousand dollars, . . . and such neglect shall also be a cause of forfeiture of all the rights” granted under the laws of this state. The attorney general “shall collect by action the pecuniary forfeiture herein imposed and also proceed to have forfeiture,” otherwise, “duly declared. Any such company . . . before the final judgment of forfeiture . . .' may be permitted to make the return and pay the license fee herein provided for upon special application to the court . . . upon such terms as the court shall direct.”

These actions, as counsel for appellants contend, are governed by sec. 1214, but, as before indicated, the meaning-thereof must be determined by looking at all parts of the-plan of which that forms one feature.

The idea is advanced that the words “obtain a license or pay the license fee therefor or any part thereof” refer to invoking favorable action by the administrative officers of the-state having to do with the matter: the railroad commissioner,, as to passing upon the report, and the treasurer, as to receiving the license fee and issuing the proper license, and that: the result is conclusive in favor, of the licensee, as to the penal clauses. Counsel reach that conclusion by assuming-that' the law which first included the license feature (ch. 174,. Laws of 1860) provided for a return, as now, payment of the required percentage on “gross earnings ... to be ascertained by such return ” and the issuance of a certificate acknowledging such payment, that to be “evidence of the facts therein contained,” — made the return conclusive of the-amount payable, and the license conclusive as to the fact of payment; and that such features, though discontinued by the Revision of 1878, were in effect restored by the change in 1899, requiring, as a condition precedent to the issuance of the license, approval of the report by the railroad commissioner. The assumption does not seem warranted.

The dominant feature of the law of 1860 is contained in sec. 1: the idea that every railroad shall be required to pay to tbe state, as a condition of conducting its business, a stated proportion of its gross earnings. Tbe rest of tbe act consists of mere administrative features. Snob dominant feature was a substantial continuation of tbe controlling feature in tbe initial law on tbe subject (cb. 74, Laws of 1854) incorporated into sec. 183, cb. 18, R. S. 1858. It bas been continued down to tbe present time, and is now contained in secs. 1212 and 1213, Stats. 1898. It still requires, without qualification, payment of a license fee eacb year for the privilege “to operate the railroad” for such year, except as displaced by cb. 315, Laws of 1903.

Tbe license was not, by tbe act of 1860, made conclusive evidence of payment of tbe full amount required by law, nor, expressly, evidence at all of compliance therewith, but “evidence of tbe facts therein contained,” referring obviously to tbe facts required to be contained therein: viz., making tbe return of gross earnings, application for a license thereon, and payment of tbe required percentage of such earnings, “as ascertained hy such returnIt would be a highly unreasonable construction of such provisions to bold that tbe legislature intended thereby that tbe state should take tbe return as absolutely correct, leaving no remedy for failure of the railroad company, through mistake or fraud, to pay tbe proper amount. It must have been contemplated that tbe payment, precedent to tbe issuance of tbe license, should be based on tbe statement of gross earnings made by tbe payee, and that tbe license should be evidence thereof, but not more than prima facie evidence of payment of tbe amount required by law.

True, in tbe Revision of 1878 tbe former feature, exr pressly making tbe certificate of payment evidence, and tbe express requirement for payment to be made upon gross earnings “as ascertained by such return,” were omitted. But we do not find any evidence in tbe revisers’ notes, or in their work as approved by tbe legislature, indicating a purpose to •change the existing law. It was not necessary to declare that the license should be “evidence of the facts therein contained,” to make it so. It would be such without any such declaration, but not conclusive evidence in any event, unless made so expressly.

By the re-enactment of sec. 2 of the law of 1860 in sec. 1212 of the Revision of 1878, a railroad, on returning its statement, was required, as before, to apply thereon for a license and make the payment required by law, payment manifestly on gross earnings according to such statement. No investigation by the treasurer was required to be made nor contemplated precedent to such payment. The making of the return, payment of the required percentage of gross earnings as indicated therein, and issuance of the license are plainly treated as if they were intended to follow each other without interruption and as a matter of course. That feature did not preclude the treasurer from refusing to issue the license upon the return made, and thereby challenging its correctness, as was done in State ex rel. c., M. & St. P. r. Co. v. McFetridge, 56 Wis. 256, 14 N. W. 185; State ex rel. Abbot v. McFetridge, 64 Wis. 130, 24 N. W. 140; and State ex rel. Bell v. Harshaw, 76 Wis. 230, 45 N. W. 308. The same was probably true under the law of 1860, notwithstanding the provision requiring payment of the license fee upon gross earnings as “ascertained from such return.” From the first, the legislative idea was to create an obligation to the state of each railroad company, in exchange for the privilege of operating its road, to pay the former a specified proportion of the latter’s gross earnings, and to impose upon each such company the duty to make a correct showing of the whole, so as to enable the state, through its proper officers, to accurately determine its proportion. That duty was not performed under the act of 1860, nor the subsequent law on the subject, except by performance in fact as well as in form. Hence, in case of the latter, merely, the officer upon whom the duty was imposed to issue the license, upon refusal, was not put in default so as to be open to coercion, successfully, by mandamus.

Tbe feature of the law added in 1899, making approval of the railroad companies’ return, as well as payment of the license fee, a condition precedent to the issuance of the license, is new. It plainly contemplated payment to the state of the specified proportion of gross earnings as ascertained by such return, the same as before, but a withholding of the license till approval of such return should be secured, unless that should occur before making the application. The scope of the commissioner’s duties in the matter has an important bearing on the right of these controversies. If the law clothed him with quasi-judicial duties in respect to the subject, intending his approval to be in the nature of a judicial determination, as counsel for appellants contend, then, of course, until such determination in any case shall be avoided for jurisdictional error it will form a bar to any prosecution under the penal provisions of the statute. State ex rel. Cook v. Houser, 122 Wis. 534, 560, 561, 100 N. W. 964.

Applying the change wrought in 1899 to the subject with which it deals, ambiguity in the language is apparent at once. "If such statement be approved by the commissioner.” Those words are very comprehensive' in their literal sense. That goes so far as to suggest intention for the commissioner to act as a judicial arbitrator between the state and the applicant for a license, respecting whether the amount of gross earnings and the trackage reported by the latter: the two things necessary to determine the proper amount of such applicant’s contribution, are correct, in many cases requiring a long, laborious, and searching investigation of the books of' the railroad company. That indicates the words were used in a somewhat narrower sense than the full scope thereof, since, as seems plain, the duty of approval was not supposed to require any considerable time in performance. Notwith•standing the change, the payment of one half the license fee •at the time of issuing the license remained as before.

The amendment, as will be seen, treats the return, the application for the license, and the payment therefor as parts -of one transaction. Evidently it was intended the applicant should obtain the requisite approval of its return in advance of presenting it to the treasurer. That is manifest from the •fact that, notwithstanding the added feature, the time for making the return and applying for the license was not changed, and the applicant was still required to pay one half •of the license fee at the time of issuing the license.

“And thereupon,” says the amendment, “if such statement shall be approved” a license .shall issue. “And thereupon” refers to the making of the return and the payment. It signifies immediately: at once. “If such statement be approved,” in view of the context, signifies a condition in prce-senti, harmonizing with “thereupon” as regards the making •of the return, application for the license, and payment of the license fee. The subjunctive form was used with the mere conditional instead of the indicative form. The idea intended is this: upon payment of the license fee required 'by law according to a statement approved by the railroad ■commissioner, the license shall issue. Had the language of the amendment been, if such statement is approved, or if •such statement shall be approved, suggesting a condition, or if such statement shall have been approved, suggesting a previous act of approving, the real legislative intention would appear more clearly. Hence, while the approval may be a subsequent occurrence, and the issuance of the license be delayed therefor, the legislative idea evidently was that the •commissioner should have sufficient opportunity to perform 'his duty in that regard prior to the time for payment. .

An investigation of a year’s business of all the railroad ■companies operating in this state would take the time of the railroad commissioner with a corps of expert assistants for months. There can be no reasonable doubt about that. Such an investigation would be necessary, in any case, in order to determine the truth of the report presented by a company, independently of mere general information afforded by the company itself. The time which the commissioner could devote thereto before the date for paying the license fees would be too short, altogether, even for investigating the business ■of one road. The year to be covered by the report closes December 1st. In forty-two days thereafter, the report is required to be in the hands of the state treasurer, with the commissioner’s approval thereon.

There is no more familiar rule for the construction of statutes than that a meaning should not be attributed to one which will render it absurd, if another which is reasonable can be discovered, expressed within the scope of the language used.

“Courts may ignore the literal sense of words even where there is no uncertainty of expression, in order to clear up obscurities and avoid absurd consequences, and carry out the idea of the lawmakers, if such idea . . . can be reasonably said to be covered by the language used.” State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 N. W. 544; Rupiper v. Galloway, 105 Wis. 4, 6, 80 N. W. 916.

The duty, impliedly imposed on the railroad commissioner, must be one possible for him to perform in order to render the law a sensible enactment. By turning to the statutory requirements as to information to be furnished the commissioner’s office by railroad companies, the nature of that duty seems apparent. By sec. 1843, Stats. 1898, every railroad company is required, each year, to make a report to its stockholders of all its operations for the year ending the preceding 31st day of January, and to send, a certified copy thereof to the railroad commissioner, on or before the 1st day of February. It will be noted that ex industria the legislature required such report to be in the hands of the railroad commissioner in. time for use in verifying the statements of the railroad companies under sec. 1211. Snch report is required to contain much information of value to the commissioner in performing his duties under sec. 1212.

Further, by sec. 1795 of the Statutes, every railroad company is required to make such reports to the railroad commissioner under oath as he shall require, and particularly to make such reports as may be necessary to enable him to make return to the state treasurer on or before the 10th day of February in each year, as to certain specified matters. Thus, again, it will be noticed that the information required to be furnished to the commissioner’s office must be there before the time for him to perform his duty of approval of the statements. So, quite plainly, the legislature must have contemplated the existence in such office of the information requisite for the commissioner’s use in verifying the correctness of the statements and performance of mere ministerial duties in respect to the matter. The idea is that, prior to February 10th in each year, the commissioner shall receive the statements purposed to be returned to the state treasurer, and to reasonably verify them so far as shown to be correct by the files of his office. So the law, at the time of the occurrences under consideration, did not require performance by either the state treasurer or the commissioner of any duty in respect to the statement of any railroad company, precedent to the issuance of the license to it under sec. 1212, except one of purely ministerial nature.

What has been said gives due consideration, it is thought, to all matters of importance relied upon by appellants as showing the purpose of the legislature up to 1878, and again commencing with the act of 1899, of making the license a full protection to the holder as to penalties”for noncompliance with the law in respect to payment of the required proportion of gross earnings. We will now briefly refer to those features of the law necessary to be dealt with favorably to-respondent in order to support the judgment. We shall forego treating the matter historically to the full extent. We will content ourselves by briefly stating the condition of things which confronted the revisers in 1878, and the way they met it. That will place before us sharply the origin of some of the difficulties to be solved under the law as we now find it. The law at the time of the occurrences under consideration was the same, in all essential particulars, as it was left by such revision, the act of 1899 not working any material change, as we have indicated.

The situation for the revisers to work into a harmonious system was created by the following:

(1) Oh. 74, Laws of 1854, contained three features: (a) An obligation of every railroad company to file with the state treasurer by January 10th of every year a verified statement of its gross earnings in this state for the previous calendar year; (b) an obligation of each such company by such time to pay into the state treasury, as a tax, one per centum of such earnings, that to be in full of all tax liabilities on account of its property; (c) liability to “forfeit to the treasurer of the state for the use of the state, the sum of $10,000 for each case of neglect, to be recovered in the name of the state treasurer by the action of debt.” That law was incorporated into the Revised Statutes of 1858 at secs. 182, 183,. and 184, ch. 18, the penal clause being so phrased as to apply only to violations of the provisions of that chapter.

(2) Ch. 140, Laws of 1859, changed the date in the first feature to February 10th, and that in the second to April 1st.

(3) Ch. 174, Laws of 1860, revised the second feature: the one contained in sec. 183 aforesaid, without changing it as to the amount of the exaction, making the date of payment February 10th, adding the license feature and the idea of payment upon gross earnings as ascertained by the statement, substituting for the express idea, formerly, of payment of a part of the earnings as a tax, the idea of payment thereof .as compensation for the “privilege of operating the road:" such, matters being incorporated into two sections; and adding in a separate section the features as to failure to comply with the provisions of that act, the duty of the attorney general to prosecute therefor, and the right of the court in the action, in its discretion, to grant relief from the default on terms. It should be noted that by mistake, it seems, the legislature failed to expressly repeal sec. 183, which was fully revised as stated, though it was manifestly repealed by implication. There was a repeal expressed of sec. 133, ch. 18, of the Revised Statutes, which was doubtless intended for sec. 183. It should be further noted that the amendatory act of 1860 did not contain any provision as to a return. That was left to be governed by the existing law.

(4) Ch. 22, Laws of 1862, changed the proportion of gross earnings from one per cent, to three per cent., and permitted one half to be paid upon the issuance of the license and one half August 20th thereafter, failure to pay the second half to work a forfeiture of the license and incur the punishment provided in the act of 1860.

(5) Ch. 315, Laws of 1874, and cks. 97, 113, Laws of 187 6, changed the license fees and classified the roads.

Thus it will be seen, the penal provision, particularly involved here, originated in 1854, but after 1860, until the new revision, it did not apply to any default except failure to make the report, while punishment by forfeiture of rights and franchises applied to failure to make the requisite yment and to obtain the license.

The revisers proceeded thus: The first feature of the law of 1854, as incorporated in sec. 182 of the Revision of 1858, as modified by the law of 1859, without change was made sec. 1211.

The second feature of the original law, as incorporated into sec. 183 of the Revision of 1858 and changed by the law of 1860, — eliminating tbe express requirement for computing the percentage of gross earnings on the whole thereof as “ascertained from such return,” adding the idea of termination of the license by revocation, found only in the act of 1862, in connection with failure*to pay the second half of the license fee: eliminating the feature as to the proportion of gross earnings to be paid, and referring to the next section for that subject, and adding the idea that the license .should be revocable for cause, — was made sec. 1212.

The feature last said to have been eliminated with the change as to the proportion of earnings to be paid and classification of roads made by acts of 1874 and 1876, and the feature of the law of 1862 as to the payment of the license fee in two instalments, was made see. 1213.

The third feature of the act of 1854, as incorporated into sec. 184 of the Revision of 1858: the one particularly involved here, and not applicable, as we have seen, other than to failure to make the return of gross earnings, after the law of 1860, and the penal feature of-the later law, which, as we have seen, was therein made applicable to failure to pay the required percentage or procure the license, were combined as sec. 1214, and made applicable to any default as to ■ any of the requirements under the preceding sections, the word “absolutely” being interpolated before the word “forfeit” as regards the $10,000 feature, so that whereas before ■the wording of the law was “shall forfeit,” etc., it was made to read “shall absolutely forfeit,” etc.

Thus we have this situation, in express language, as to every railroad company: first, a requirement to make an annual report of gross earnings; second, a requirement to obtain an annual privilege to operate the road, the same to be evidenced by a license issued by the state treasurer; third, an obligation to pay to the state for such privilege a specified proportion of gross earnings, one half at the time of the issuance of the license and one half August 10th thereafter; fourth, absolute liability for the payment of $10,000 for any default in respect to any of such, matters, and a conditional forfeiture of franchises. No mention is made in the law of the subject of taxation as such. That is an exceedingly important feature of this case. A penal statute in aid of the taxing power only or as a police regulation might not be open to the liberal construction of one in aid of the enforcement of taxes having the element of contract obligation.

It is not important here that the exactions are taxes in the broad sense of the term, which includes all burdens imposed, resulting, in the discharge, in contributions to the public funds for the public use. The term “tax” has come to be applied to all sorts of exactions which swell the public fundsj stopping short only of fines imposed as punishment for criminal occurrences. Laws requiring payment to the state of compensation for the enjoyment of a privilege, such-as that of a foreign corporation to do business within the state, or requiring contribution to the public treasury as mere police regulation, such as license fees of hawkers or peddlers- and saloon license fees, are commonly called taxes. In a broad sense most of them are referable to the taxing power though probably no one would regard them as taxes in a constitutional sense: that is as taxes on property falling under sec. 1, art. VIII.

The payment by a railroad of a percentage of its gross earnings as compensation for the privilege of operating its road, or exemption of its property from the burdens of ordinary taxation, is generally spoken of as a tax, and properly so in the broad general sense, since the sum paid goes into the public funds to meet public expenses, and the method by which it is secured is an indirect way of reaching the railroad property for the purpose of obtaining public revenue therefrom. However, such method involves the contractual element, while taxation in the ordinary sense: taxation on property, which is regulated by see. 1, art. VIII, of the constitution, does not involve such element at all. Such taxes do not constitute debts in the ordinary sense. Ordinary remedies for the collection of debts have no application to them unless the statute so provides. The text-writers uniformly say upon authority that an ordinary tax on property does not involve a contract, express or implied. Cooley, Taxation (3d ed.) U. When we keep in mind the distinction between a privilege tax involving the element of contract, and a direct tax on property, which does not involve such element, we can easily see that though the former are commonly and properly denominated taxes they are not referable to the taxing power in the constitutional sense. This we shall see more fully later.

The act of 1854, as we have shown, in terms required the payment by each railroad company of a percentage upon its gross earnings, the same to “take the 'place a/nd be in full of all taxes upon its property.11 When it was challenged first in Milwaukee & M. R. Co. v. Waukesha Co., decided in 1855 and not officially reported in due course (9 Wis. 431), its validity turned principally on whether it was an exercise of the taxing power in the strict sense of the term: such power as expressly recognized and limited in the constitution. All members of the court participating in the decision seem to have agreed in the negative, and such was the view of Judge Hubbell, who decided the case at the circuit.

True, we have only a fragmentary history of that case preserved in the books, but it is about as definite in connection with the emphatic approval thereof in Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 8 N. W. 833, as an authoritative statement of the law, as if a formal opinion had been filed showing not only the final result, but the process of reasoning by which it was reached. We will give that history, in brief, with the various allusions to the matter by those who had early to do therewith, demonstrating, it is thought, that the decision was not grounded on the idea that the law of 1854 provided for a tax on property in the ordinary sense, but was based on the principle of privilege taxes.

Judge Hubbell’s view is most clearly shown by this quotation from his opinion:

“I see no reason why . . . the law in question, which operates as a partial exemption from general taxation, may not be valid. Begarding the annual payment to the state as a tax, as the defendants claim, why might not the legislature grant exemption in all other respects? The law, certainly, is not void, because it is not worse, and does not confer greater privileges ... to wit, total exemption. But I regard the payment to the state, not as a tax, but as a bonus or compensation for the exemption granted. . . . Had the legislature exempted their property from ordinary taxation, in consideration of their doing some service to the state— such as carrying troops or public stores free of charge, — no one would call the service a tax, or question the validity of the exemption. It would be a privilege granted for a, service rendered

Sere at the very outset is the idea of revenue with incidental contract relations as distinguished from revenue derived from ordinary taxation. The meaning is unmistakable, viz.: revenue not from taxes on property in a constitutional sense, but in exchange for a privilege granted.

That idea which, it seems, formed the basis for the first judicial declaration was never departed from. When the matter was presented to this court upon review, the members thereof consisted of Chief Justice Whitow and Justices Smith and Cole. The first and last were members of the convention that framed the state constitution and must be presumed to have been well equipped, especially the chief justice, who took a leading part in such convention, to meet successfully the responsibility of reaching a correct conclusion as to the nature of that part subsequently so judicially considered. No expression made by the chief justice in the case has been preserved, but it must be taken as a verity that he fully concurred in the decision as framed by Justice Smith, which, though mislaid for a time, was recovered and since 1860, at least, has been part of the official reports. We have the same presumption as to Justice Cole reinforced by his expressions in subsequent cases. - In Knowlton v. Rock Co. 9 Wis. 410, in his opinion dissenting from the practical overruling, as he thought, of the decision in the former case, he said, speaking thereof:

“This court, after as full an examination and as careful consideration as has been given to any case which I have participated in deciding, sustained the law; the validity of which had been called in question. Though no opinion has been prepared, yet the points decided were written out by one of the members of the court, and, as he informs me, pla-ced on file with the papers in the case.” [Note the declaration that the points unanimously agreed upon were those stated in the written memorandum.] “It appears that the paper cqu-taining these points has been misplaced, or cannot now be found. Still, I supposed the ground of that decision was well understood throughout the state. This court did not decide, as has been intimated, that the law of 1854 did not impose a tax in the just and proper sense of that term, but was a payment made to the state .... in the nature of a bonus or compensation for the exemption granted. . . . The legislature might prescribe that all the railroad property in the state should pay one per centum of the gross earnings of their respective roads, in lieu of all taxes, as was done by the act of 1854, and yet this law would be valid.”

It will be seen that Justice Cole was then speaking wholly from memory. His declaration that it was not held in the former case that the law of 1854 “did not impose a tax in the just and proper sense” would be misleading if not taken in connection with the memorandum decision which he testified was correct. His affirmation in that regard makes such memorandum in effect his deliberate declaration as to what was in fact formerly decided, re-affirming it after a lapse of some four years. That he did not have a clear remembrance of the precise nature of the decision is evident from the fact that he disagreed in respect thereto with his then associates whose idea of it was confirmed by the memorandum when found. Such associates must have been very firmly convinced of the correctness of their view or else they would not have ventured to disagree with Justice Cole as to a matter resting wholly in memory in which he participated but they did not. However, their view became that of the court, as to what was really the dominant feature in the first case, and so it has stood till this day, as will more fully appear in Chicago & N. W. R. Co. v. State, post, p. 553, 108 N. W. 551.

In Justice Cole’s opinion he used the term “in lieu of all other taxes,” instead of the term “in lieu of taxes,” used by Judge IIubbeli,, suggesting somewhat that the court in the former case treated the exaction as a tax in a constitutional sense, evidently through failure of memory. The difficulty evidently grew out of the fact that two points were presented and decided in the former case, viz.: (1) Assuming that the law contemplates a tax under sec. 1, art. VIII, of the constitution, does the law violate the constitutional requirement of uniformity? (2) Does the law contemplate a tax referable to sec. 1, art. VIII, of the constitution? The negative of the first proposition would support the law. The negative of both would support it. The affirmative of the first and the negative of the second would support it. The second proposition was given primary place by counsel on both sides as the briefs of Mr. Ryan and Mr. Pinch clearly show. The brief of Mr. Einch, under a principal and four sub-heads, argued that the law does not impose a tax, continue, or renew a tax, and a license exaction for a privilege is “not a tax within the meaning of the constitution.” The several aspects of the case were presented by counsel. They were distinctly covered by the decision, as the record shows. The first aspect is the one that seems to have most lastingly impressed Justice Cole’s mind, as is indicated from his language quoted and is also testified to by •Justice Paine, State ex rel. Att’y Gen. v. Winnebago L. & F. R. P. R. Co. 11 Wis. 35, 38.

All uncertainty was fully cleared up later. The proof that those associated with Justice Cole in Knowlton v. Rock Co. 9 Wis. 410, supposed and acted upon the theory that the former decision went mainly upon the ground that the law of 1854 did not contemplate an ordinary tax such as is referred to in the constitution, leaves nothing to be desired. Chief Justice Dixon who wrote the opinion said of the former decision:'

“However, from the best information we have been able to obtain, we are relieved from any embarrassment growing out of the doctrines which it was claimed by counsel were established by it; as we learn that it was determined by the court that no question of the exercise of the taxing power was involved in it.”

Justice Paine,'who was the other associate of Justice Cole in the Knowlton Case, later in State ex rel. Att’y Gen. v. W. L. & F. R. P. R. Co., supra, said on the same subject:

“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.”

Before this later case Justice Cole’s memory as to the first ease seems to have been somewhat refreshed, as note his language in the second dissenting opinion:

The case presents for consideration “the validity of those provisions of our revenue lew requiring the several railroad . . . companies to pay annually into the state treasury one per centum of the gross earnings of their respective roads which are declared shall be in lieu of all taxes that might otherwise have been imposed upon that class or description of property. ... If the legislature can exempt railroads from taxation on the ground of public policy or convenience, can it not say they shall pay one per centum of the gross earnings of their respective roads into the state" treasury in lieu of all taxes ? . . . I have no doubt but it is entirely competent for the legislature to make these various exemptions.”

Thus he concurred, quite distinctly, in effect, with all others whose testimony we have on the subject, that the original judicial idea of the law of 1854 was that it did not provide for taxation of property in a constitutional sense, but did provide for exemption of property therefrom ando compensation to the state for the privilege. It obviously, it seems, evinces a confusion of ideas when it is said that compensation in lieu of taxation, in a constitutional sense, is itself taxation in such sense.

We will now look particularly at the written evidence of the decision in Milwaukee & M. R. Co. v. Waukesha Co. 9 Wis. 431; the memorandum under the hand of Justice Smith, recovered after Knowlton v. Rock Co. was decided, and said by Justice Cole, as we have seen, to be a correct statement of the points previously decided. That left no ground, it would seem, to doubt that the proposition of primary importance in the case was the first one we have mentioned, and that it was decided in-the negative. This is the language of the memorandum:

“The court do not think the law of 1854 does impose a tax within the meaning of the constitutional provisions, and therefore the law is valid so far at least as the government is concerned.”

After many vicissitudes that decision was affirmed in Kneeland v. Milwaukee, 15 Wis. 454, decided in 1862. The conclusion there reached effaced from our records everything that had occurred casting discredit upon the first decision, and intrenched and dignified it as voicing the true nature of the law of 1854 and the dominant reason why it was not condemned as unconstitutional, namely: because it did not deal with the subject of taxation in a constitutional sense at all, but dealt with the power to exempt from taxation and to exact an equivalent therefor. Speaking of the effect of the latter decision, in Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 8 N. W. 833, the present chief justice said, substantially: It put upon all judicial decisions and expressions with reference to tbe act of 1854 subsequent to tbe decision-in Milwaukee & M. R. Co. v. Waukesha Co. in 1855, inconsistent therewith, tbe impress of “mere dicta.33 Tbe chief justice further well said that considering the ability of counsel who presented the case and the justices who considered' and decided it, “it would seem almost impossible that there should be any mistake in the conclusion reached.” The conclusion “necessarily was adverse to every point” raised by the demurrer. It was that the law was constitutional because it was legitimate to exempt a class of property from taxation and to do it upon condition of the owners paying a stated compensation “to the treasurer of the state for the use of the state” in lieu thereof. Here, in 1881, we find the most emphatic declaration that the basis of the former decision was that the early law did not deal with the imposition of taxes such as are mentioned in the constitution, but with exemptions therefrom in consideration of the rendition of an equivalent for the privilege. We should say in-passing, in order not to have its importance overlooked, that the idea of compensation for the privilege of operating the road was not then thought of, because it was not, as we shall see, a feature of the old law, but was added in response to a judicial suggestion in the law of 1860.

The question has been, even, suggested at this late day as-to whether the memorandum to which we have referred is the one mentioned by Justice Cole as containing the statement of “points decided, written out by one of the members of the court.” That idea springs up, so to speak, the product of imagination, as it were, when stimulated by interest, to avoid the letter or spirit of the early decisions, as persistently as the ghost in the play, though in fact it was as surely buried beyond power of resurrection as was the murdered Banquo. Why it should, after the lapse of half a century, and after having been repeatedly demonstrated to the contrary, be thought to be a legitimate subject of controversy somewhat passes comprehension. In Kneeland v. Milwaukee, 15 Wis. 454, Justice Paihe, speaking of the source of information at hand as to the nature of the decision in the early case,said: “We get this from a written statement of the points -decided, made soon after the decision, by the judge, then acting as reporter, and to whom the duty was assigned of writing the opinion,” speaking of the identical paper, manifestly, from which we have quoted. Still further, in the opinion by the present chief justice, to which we have before referred, that same paper is indorsed as the one referred to by Justice Cole in Knowlton v. Rock Co. 9 Wis. 410. 'Then we find it incorporated in the original report of the case found in vol. 9 of the old edition of our Reports prepared by Smith, ex-associate justice, acting as reporter, with his own certificate that it is the only opinion ever written in the case. If that, in the whole, does not put the truth of the matter beyond all reasonable doubt, then there is little use of effort to discover truth by evidence. The only reasonable -explanation of the mist that has seemed to surround this matter for years is that the statement in the decision that the law of 1854 does not “impose a tax within the meaning of the constitution” voiced the deliberate judgment of Chief Justice WhitoN and Justice Smith, with which Justice Cole did not altogether agree, he believing that it was an exaction “in lieu of taxes ordinarily imposed: a condition of exemption from ordinary taxation and so taxation in the just and proper sense of that term;” really a distinction without a difference, since an exaction in lieu of ordinary taxation may well be a “tax in the just and proper sense of the term” and not be taxation on property “within the meaning of the •constitution.”

Having now shown clearly, as we think, that the controlling idea in the early decisions was as we have indicated, it next becomes important to show how the change came to be made in the act of 1854 by the act of 1860. That legislation occurred while it was supposed the former was fatally defective. The legislature ex industria, as we shall show, endeavored to remove all features of the law of 1854 which gave rise to the idea in the minds of some that it was a taxing-law to be tested by sec. 1, art. VIII, of the constitution.

It must be kept in mind that the legislature, in framing-the new act, had the benefit of the suggestions of the three justicés, Dixon, Paine, and Oole, who participated in making the decision condemning the early act as unconstitutional,, the opinion of Judge Hubbbll we have referred to, and the three opinions in Knowlton v. Rock Co., supra. The nullifying decision was filed early in the January term of 1860. It was a startling revelation of the supposed weakness of one of the most important revenue measures of the state. It cut off most unexpectedly, since it was supposed the validity of the law had been firmly established, a most significant source of public revenue. That naturally stimulated the legislature to exercise all the care that could be devoted to the subject, to apply an efficient remedy: to devise a scheme that could not be condemned because an unconstitutional taxing measure for any of the reasons suggested as to the former law.

The nullifying decision must have been carefully studied.. There is abundant evidence of that. It was noted that Justice Paine, in delivering the leading opinion, said, in effect, that the law of 1854 could not be. sustained under the police power because “a license is an authority granted to do that which the licensee might not legally do without it” and that the primary object in such a law is regulation, the revenue feature being a mere incident. It was further doubtless noted that he said the law did not contemplate compensation for the privilege of exercising the rights granted by the charter, “for that the charter gives, and the act does not profess-to give it.” It was further observed that he gave significance to the fact that “the legislature,” as he said, “did not call ¡the tax a license, but honestly coiled it a tax, as it is beyond question

Likewise it was doubtless appreciated that Justice Cole was of the opinion that the percentage payment was required to be made as an equivalent for the advantage secured by the exemption from ordinary taxation; that such was the basis for the views of Justices Whiton and Smith that the exaction was not a tax in a constitutional sense, since it could not be in lieu of a thing and be that thing also; and that Justices Dixon and Paine could not agree with that because of features in the law inconsistent, to their minds, therewith.

In addition to the judicial suggestions the legislature had the benefit of the exhaustive argument of Mr. Ryan, wherein he presented, with great clearness and force, the view that the rule of taxation mentioned in the constitution refers to the ad valorem method of taxing property; that the words referring to property in connection with those expressing the idea of uniformity of rule made the former words of limitation as to subjects of taxation, and the latter words of limitation as to the methods of taxation, applying the maxim, as he thought should be done, expressio unius est exclusio alterius. That, of course, has not been indorsed by the court so as to exclude other forms of taxation than that on property. The circumstance is simply mentioned, among others, to show the situation under which the legislation of 1860 occurred. We may well say, however, in passing that the rule of construction which Mr. Ryan insisted should be applied was, during the time the constitutional convention was dealing with the particular subject, stated by one of the ablest lawyer members of the body to be the one which their perfected work would subsequently be tested by.

Row, in drafting the new law, the first feature of the former act, that in relation to the return of gross earnings, was, as we have seen, left as before. There was no possible doubt at that point.

Taking up the nest feature: the one which made the court, speaking by Justice PaiNe, regard the act of 1854 beyond room for reasonable doubt a taxing law under sec. 1, art. VIII, of the constitution because of the words “which amount of tax shall take the place and be in full of all the taxes . . . upon said roads,” it was wholly discarded.

In view of the significance accorded to the feature of the law that the exaction could not be regarded in any sense as a license as “it does not purport to be a license,” in the opening lines of the new act it was provided that every railway company “shall apply for and obtain a license.”

Noting the importance given in Justice PaiNe’s opinion to the fact that the percentage payment provided for in. the old law was not called compensation for the exercise of the franchise, and his suggestion that a license under the police power necessarily contemplates regulation primarily and incidentally revenue, and further the intimation that an exaction “analogous to the requiring of a bonus for the granting of charters” would not be an exercise of the taxing power, strictly speaking, in the new act the idea that the payment should be regarded as consideration for the privilege of operating the road and the evidence of the acquirement of that privilege a mere certificate of the facts as regards the making of the return and the payment of the percentage on gross earnings, was made prominent.

Then, whereas the old law was labeled “An act taxing failroads,” etc., the new one was characterized in its title “An act regulating railroads.”

Thus it will be seen that every judicial suggestion made in the three eases as to the former act being a taxing law under sec. 1, art. VIII, of the constitution was met in the new one exclusively and inclusively. The language in the former as to the exaction being in full for taxes was ex in-dustria omitted. Care was exercised even to avoid using an expression conveying the idea that the exaction was to be even.in lieu of taxes. The idea that the act might be claimed to be a police regulation from the mere fact that application for a license was required, was repelled by the evidence of payment being denominated a “certificate to be evidence of the facts therein stated.” The ideas of compensation for the right to exercise the franchise, analogous to a bonus for the' corporate privilege of operating the road, though not that strictly speaking, impliedly suggested by Justice PaiNe as legitimáte, were adopted in place of the idea of payment of a sum of money “to take the place and be in full of taxes”' or a consideration for exemption from taxation. To make it doubly sure that the new enactment would not be regarded as having any of those features which had led the court to-hold the old one was void under sec. 1, art. VIII, of the constitution, and at the same time preserve, so far as it could be safely done in the light at hand, the feature of compensation to the state as an equivalent for exemption from ordinary taxation as well as compensation for the privilege of operating the road, as a companion piece of legislation an act was passed exempting railroad property from taxation, but without referring to the regulating act, so called.

In the Revision of 1878 the features of the law of I860-were emphasized by making the obligation to pay the state a part of the gross earnings as compensation for the privilege of operating the road more prominent somewhat than before,, and making the exemption of railroad property one of the features of the general statutory treatment of that subject, and without any express connection thereof with the other provision. True, the latter was included in a chapter on taxation under the head of taxes on various kinds of property, all indirect however, most of which were included in the exempt classes, but so was the scheme for obtaining revenue from insurance corporations, foreign and domestic. No one would claim that the exaction from that source is a tax in a constitutional sense. The idea was expressly rejected in Travelers’ Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407, Justice Winslow saying for the court: “It is not a tax under the decisions of this court.” Such exactions are, as we have seen and will still further see, privilege taxes involving necessarily the element of contract.

With this history, why even adhere to the idea industriously discarded by the legislature in the act of 1860, that the system then so carefully devised, in a legal sense provides for payment of a percentage of gross earnings of railways to the state as consideration for exemption from taxation, though we do treat it as such in practical effect ? Why not regard the purpose of the law to he in a legal sense what it says it is: one to obtain from railroad companies a part of their gross earnings as compensation for the privileges accorded to them to operate their roads and carry on their business; that the law, while referable in the broad sense to the power of taxation, involves an exchange of equivalents, a proposition by the state to accord certain privileges on condition, and an acceptance thereof % That would be its nature even if the exaction were in lieu of ordinary taxes, as we shall see, but more appreciably so in case of the new feature.

That the efforts of the legislature have since been supposed successful, is evidenced by the fact that in more than forty years that have elapsed since the enactment it has never been seriously questioned. The decision in Kneeland v. Milwaukee, 15 Wis. 454, was made some two years thereafter, but the action was commenced theretofore and involved only the act of 1854. The new enactment was referred to by Justice Paine as if he regarded it in the light, somewhat, of an endeavor to do the same thing purposed by the old law, but in a new. way. However, no opinion was expressed as to its legal character and none was called for. It was a valid enactment necessarily, since the former one was, and it is difficult to see how the result could be otherwise if the court had adhered to its condemnation of the earlier law. It has never been beld by tbis court a taxing law in a constitutional sense. It bas never been analyzed and passed upon, tbe whole subject being allowed to rest on tbe adjudication as to tbe act of 1854. It could not be reasonably beld a law for tbe ordinary taxation of property in face of tbe bistory we bave given. Courts elsewhere are in harmony with these views, but our own decisions are so unmistakable on tbe subject that we shall not review or cite others except as it may be incidentally done in treating another branch of tbe case.

In view of tbe foregoing we can without further discussion eliminate some elements from tbe case which were exceedingly troublesome at tbe start in determining tbe right of tbe matter in controversy: elements tbe continuance of which as significant in tbe case would seem to require affirmance of tbe judgments.

If the legislative idea was a penalty for failure to pay a tax strictly so called, which it is not, it could no more be forgiven for mistake, whether excusable or not, than that to which it is incidental. As soon as tbe default occurred the penalty would be regarded in legal effect as part of tbe tax, especially since tbe law provides for an absolute forfeiture. We venture to say that in all tax laws where it is provided that upon default in payment being made a certain amount in addition to tbe tax shall be forfeited, upon the forfeiture occurring, the penal sum is regarded to be as fixed and certain in its obligatory feature as the tax itself. It is said, in effect, in 2 Cooley, Taxation (3d ed.) 900, that a penalty for neglect to pay a tax constitutes an addition to the tax. Judicial authorities so hold. Louisville City R. Co. v. Louisville, 4 Bush, 478; Burlington v. B. & M. R. Co. 41 Iowa, 134; High v. Shoemaker, 22 Cal. 363; Kansas Pac. R. Co. v. Amrine, 10 Kan. 318. That such was the intention of the legislature expressed in the act before us, especially in view of the significant word “absolutely,” and that nothing but .mere default is essential to its activity, would seem too clear to be gotten rid of by any reasoning yet presented, if we were to regard tbe law as a taxing measure independently of any contract feature.

We venture tbe assertion tbat no authority can be found nor principle referred to sustaining tbe proposition tbat a statutory penalty for failure to pay an ordinary tax can be avoided on tbe 'ground of mistake or discharged otherwise than by full payment. Tbe cases cited by respondent, Mackay v. San Francisco, 113 Cal. 392, 45 Pac. 696; State v. Alta S. M. Co. 24 Nev. 230, 51 Pac. 982, and State v. Carson City Sav. Bank, 17 Nev. 146, 30 Pac. 703, are to tbat effect, so far as they go. They do not apply to tbe case in band because it does not relate to ordinary taxes.

If tbe law was a police regulation, which it is not, such a penalty for tbe transgression would be enforceable regardless of whether it was wilful or by mistake, excusable or inexcusable. Tbe following cases cited by counsel for respondents are to tbat effect: Brig Ann, 1 Gall. 62, Fed. Cas. No. 397; 3 Greenl. Ev. (16th ed.) § 21; Barnes v. State, 19 Conn. 398; Comm. v. Mash, 7 Met. 472; Comm. v. Boynton, 2 Allen, 160; Comm. v. Raymond, 97 Mass. 567. But they do not apply. Tbe cases and others of tbe same character which might be referred to, involve such transgressions as selling adulterated mill!:; selling liquor without a license; keeping naphtha for sale under a false name; furnishing liquor to minors; selling liquor to intoxicated persons; failure to cancel revenue stamps, and the like, contrary to law. In •all such cases upon the general principles applicable to police regulation it is held that guilty knowledge or bad intent is not essential to the forfeiture unless the law makes it so. The principle does not apply here.

Eor the reasons already given, authorities cited by counsel for appellants dealing with statutes for the punishment of •occurrences which, in their commission, necessarily involve the element of bad intent, do not apply, nor do statutes of a penal nature, remedial in character in favor of the injured person for an act akin to one involving criminality, such as Cohn v. Neeves, 40 Wis. 393, and Wright v. E. E. Bolles W. W. Co. 50 Wis. 167, 6 N. W. 508.

Neither, it seems, would Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485; Johnson v. Huber, 117 Wis. 58, 93 N. W. 826, and like authorities involving remedial statutes in aid of the enforcement of obligations growing out of contract relations apply, if the law, as claimed by counsel for appellants, was strictly speaking a taxing measure. We would then have to enter another and entirely different and, to our mind, barren field, to find clear warrant for reading out of it a meaning other than that which its literal sense suggests, since that was made so emphatic by use of the word “absolutely.”

The taxing law, so called, under consideration, in the whole, as indicated, involved, in legal effect, an exchange between the state and the railroad company of equivalents. The former accords the latter the privilege to operate its roads; the latter, in consideration thereof, renders to the former a proportion of its earnings. By operating the road the company impliedly promises to pay the state the specified compensation for such privilege, which is fixed and certain, since it is based on past business. The state by permitting the operation of the road acquires as an asset the statutory right to the sj>ecified proportion of the previous year’s gross income. That constitutes an indebtedness definite as to amount and time of payment, dischargeable only by payment like any other absolute obligation on contract for the payment of money, and collectible by ordinary remedies in case of default, if necessary. It is quite different in that respect from a tax in the ordinary sense, in that in the-latter there is no element of contract involved and ordinary remedies are not usable to enforce payment in the absence-of statutory authority. We have adverted to that before, but it is so important in this ease that we will add a little here to what has been said.

There is some confusion in judicial expressions as to whether an ordinary tax is a debt. Because it is a liability, it will be found sometimes spoken of as the former, no idea of the contractual element necessary to one strictly so called being in mind. As a rule, whenever any court has been required to decide whether such a tax involves such element the decision has been in the negative. One might easily be misled by reading the different expressions even of the same court on the subject, if the circumstances under which the varying expressions were used are not taken into consideration. Eor examples, in Warden v. Fond du Lac Co. 14 Wis. 618, 620; Peters v. Myers, 22 Wis. 602; Marsh v. Clark Co. 42 Wis. 502, 509; Flanders v. Merrimack, 48 Wis. 567, 572, 4 N. W. 74; State ex rel. Davis & Starr L. Co. v. Pors, 107 Wis. 420, 425, 88 N. W. 706 — an ordinary tax is in each instance spoken of as a debt, the precise nature of the liability, however, not being involved. In In re Assignment of Riddell, 93 Wis. 564, 67 N. W. 1135, such question was directly involved and the conclusion was that such taxes are not debts in the ordinary sense, Cooley on Taxation and other authorities being cited, which hold that they do not involve any contractual element. Again at one time in Iowa the court was inclined to treat such taxes as debts, and to hold that ordinary remedies were usable to collect them. During such period they will be found spoken of as debts, though there was not entire harmony, by any means, as to whether they were collectible as ordinary contractual obligations, nor was there any definite decision to that effect. Dubuque v. Ill. Cent. R. Co. 39 Iowa, 56; Burlington v. B. & M. R. Co. 41 Iowa, 134. Later that idea was criticised and still later entirely discarded. Marshall Co. v. Knoll, 102 Iowa, 573, 69 N. W. 1146, 71 N. W. 571; Crawford Co. v. Laub, 110 Iowa, 355, 357, 81 N. W. 590; Plymouth Co. v. Moore, 114 Iowa, 700, 701, 87 N. W. 662.

All text-writers and judicial authorities substantially agree that the distinguishing feature between a debt and a tax, in the ordinary sense, is that in case of the former there is express or implied promise to pay, enforceable by ordinary remedies, and in case of the latter such element does not exist and such remedies are ordinarily not applicable. Carondelet v. Picot, 38 Mo. 125; Peirce v. Boston, 3 Met. 520; Camden v. Allen, 26 N. J. Law, 398; State ex rel. Hayes v. Snyder, 139 Mo. 549, 553, 41 S. W. 216; Blevins v. Smith, 104 Mo. 583, 595, 16 S. W. 213; Augusta v. North, 57 Me. 392; Shaw v. Peckett, 26 Vt. 482; Loeber v. Leininger, 175 Ill. 484, 51 N. E. 703; Mechanics’ & T. Bank v. Debolt, 1 Ohio St. 591; Danforth v. McCook Co. 11 S. Dak. 258, 76 N. W. 940; Hibbard v. Clark, 56 N. H. 155; State v. Southwestern P. Co. 70 Ga. 11; Burroughs, Taxation, § 105; Blackwell, Tax Titles (5th ed.) § 335; 1 .Desty, Taxation, § 6.

'A few quotations from the cases cited will indicate how very emphatic -the distinction we have pointed out is made by the authorities.

“Nor are taxes contracts between party and party either express or implied.” Shaw, C.’ J., in Peirce v. Boston, supra.

“The existence of a contract either express or implied is the ground on which interest is generally allowed. The assessment of taxes does not create a debt that can be enforced by suit or upon which a promise to pay interest can be implied.” IshaM, J., in Shaw v. Peckett, supra.

“A tax in its essential characteristics is not a debt, nor in the nature of a debt.” “It is not founded on contract or agreement.” “A debt originates and is founded upon contract, express or implied.” “Unless the power is expressly delegated or expressed, no right of action exists for taxes.” WagkneR, J., in Carondelet v. Picot, supra.

“Taxes are not debts in the ordinary sense of the word.” “They are not contracts either express or implied. They cannot be collected by suit at law in the absence of express statutory provision.” State v. Southwestern R. Co., supra.

Becurring to the character of the law under consideration, the feature as to the report is a mere instrumentality to enable the state to determine the measure of the consideration to be rendered to it as the equivalent of the privilege it accords. The issuance of the license creates evidence, but prima facie evidence only, of full payment of such consideration. The requirements as regards the report and the license being such mere instrumentalities in aid of collecting the compensation to be rendered to the state, are not the measure of it. The penal provisions, the same as those relating to'the report and the license, are merely administrative in character, intended to operate persuasively as regards performance of duty, the primary duty being to fully perform the agreement to pay the specified percentage growing out of the acceptance of the offered privilege to operate the road, and intended also to 'operate punitively as to the nonperformance of duty. We cannot emphasize too much that difficulty has grown out of confusing the power of taxation under sec. 1, art. VIII, of the constitution, the police power, and power as to privilege taxes involving the contracting power to some extent. In no field is that more apparent than in that of dealing with laws of the character of the one under consideration. It has been significantly in evidence in this ease in the treatment of the subject by the learned counsel for the respective parties. It has many times been held that a law exempting property from taxation coupled with an' obligation to contribute to the public funds other than by taxation in the ordinary sense: direct taxation of property, in consideration of some privilege granted by the state within its power to grant, refuse, or prohibit, is valid and creates a contract between the owner of the property and the state. Louisville City R. Co. v. Louisville, 4 Bush, 478; Newport v. South Covington & C. R. Co. 89 Ky. 29, 11 S. W. 954; Pac. R. Co. v. McGuire, 20 Wall. 36; State v. Miller, 30 N. J. Law, 368; Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. 968; Wilmington & W. R. Co. v. Alsbrook, 146 U. S. 279, 13 Sup. Ct. 72; Mobile & O. R. Co. v. Moseley, 52 Miss. 127; State Board v. Morris & E. R. Co. 49 N. J. Law, 193, 7 Atl. 826; Dodge v. Woolsey, 18 How. 331; State v. Butler, 86 Tenn. 614, 8 S. W. 586; Detroit City St. R. Co. v. Guthard, 51 Mich. 180, 16 N. W. 328. No constitutional provision on the subject of taxation of property is involved in such a law except that feature permitting exemptions from taxation.

In the very latest expression of the federal supreme court on tbis subject (Powers v. Detroit, G. H. & M. R. Co. 201 U. S. 543, 26 Sup. Ct. 556), the law then under consideration characterized the exaction as a tax and so it was called over and over again in tbe opinion by Mr. Justice Bbewee. But it was held that tbe obligation upon wbicb it was based was contractual and tbe court treated tbe law as not dealing witb taxes in tbe ordinary sense. It provided that “said company shall, on or before tbe 1st day of July, pay tbe state treasurer an annual tax of one per cent, on tbe capital stock of said company paid in, wbicb tax shall be in lieu of all other taxes, except penalties imposed upon said company by its act of incorporation or any other law of tbis state. Tbe said tax shall be estimated upon tbe last annual report of said corporations.” Tbe enactment was in tbe nature of an amendment to an existing corporate charter enlarging tbe original scope thereof. Tbe court held that tbe legislation and tbe action of tbe railroad company in respect thereto created a contract inter partes; that tbe tax, so called, wbicb it contemplated, was one based on such contract and hence that tbe state could not violate tbe obligations thereof any more than it could those of any other contract. We should say in passing that tbe circumstances of the case did not render necessary consideration of the subject of altering a corporate charter under reserved power in that regard.

Now can there be any reasonable doubt, on principle, that such a law as that of I860 is in the nature of an act amending existing corporate charters under the constitutional reservation of the right to do so, and that a subsequent exercising of corporate rights created contractual relations between the.Rtate and the corporation as regards the new feature the same as if such feature were originally made a part of the charter ? No one will doubt but what the grant of a charter and its acceptance creates a contract between the grantor and the grantee, or but what after such acceptance the contract could be changed by the legislature under the reservation of authority in that regard in the constitution, which is regarded as written in every corporate charter, so long as it acts reasonably. This court passed upon that in Att'y Gen. v. Railroad Cos. 35 Wis. 427, and it is familiar law. Where is there any room to escape the conclusion that a la-w of the nature of -that under consideration, the same as the rate law considered in the case cited, is such an amendment and while referable to the power of taxation in a general sense is, otherwise, referable to inherent contracting power, the constitutional reservation of authority to vary contracts between the state and corporations involved in corporate charters, and the power to exempt property from taxation ? Call the exactions under the railway license law taxes, and we may, and properly so, in the sense that they constitute part of the state revenues, they are yet not strictly such in the sense that they spring from activity of the taxing power in a constitutional sense: the power to tax property. No court has ventured to say that they are taxes in any other sense than that the law authorizing them is a revenue law, and that the result of its execution is the same as that of a taxing measure, strictly so called, as regards affording the necessary means to meet public expense.

There can be no difference as regards contractual relations between an accepted offer to a foreign corporation and one to a domestic corporation of the privilege to do business in the state, the condition of the offer being the rendition of a stipulated revenue to the state. In the latter circumstances upon due consideration this court held that the transaction in legal effect involved an implied promise to pay according to the terms of the offer. Travelers’ Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407; State ex rel. Fidelity & C. Co. v. Fricke, 102 Wis. 107, 77 N. W. 732, 78 N. W. 455; State v. Nat. Acc. Soc. 103 Wis. 208, 79 N. W. 220.

The idea suggested that the exaction of compensation from a domestic corporation for the privilege of exercising its franchises within the state, as regards the contractual feature, is the same as such an exaction of a foreign corporation, making the decision in Travelers’ Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407, directly in point in the present discussion, is fully supported, if support therefor were needed, by the decision in State v. Grand Trunk R. Co., opinion by Mr. Justice Field, 142 U. S. 217, 12 Sup. Ct. 163, by this language:

“The privilege of exercising the franchises of a corporation within a state is generally one of value and often of great value. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the granting of the privilege rests entirely in the discretion of the state whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the state in its judgment may deem most conducive to its interests or policy.”

The irresistible logic of these cases and the principle to which we have referred compels the conclusion that an accepted offer, under the system of legislation here, creates contractual obligations that cannot be discharged otherwise than by rendering the full amount contemplated by the promise. In State v. Nat. Acc. Soc., supra, the action on implied contract for arrears covering several years was sustained, and during all tbat period tbe debtor, so to speak, possessed a license issued in due form, but under mistake as to tbe right thereto.

On tbe question of whether the law under consideration is referable to the constitutional power to exempt property from taxation and to do it by contract, not to the power in a constitutional sense to tax property, and referable to the power to amend the contractual obligations existing between the state and the grantee of its corporate franchise, we have rested, especially on the last proposition, largely on principle, but the subject has been passed upon by courts in the very broadest aspect of the matter we have taken and in harmony with the views we have expressed. In Jersey City G. L. Co. v. United G. I. Co. 46 Fed. 264, the subject treated was whether Such a law as we have here is a taxing law, under a constitutional provision like our sec. 1, art. VIII,. in all essential particulars, or an amendment of the corporate charter under the reserved power in that regard varying the contract between the state and the holder of the franchise by imposing a new condition on the enjoyment of the corporate privilege. The similarity of the law in question there to the one here can be best appreciated by the following quotation from the former:

“Every telegraph, telephone, cable, or electric light company, every express company not owned by a railroad company and otherwise taxed, every gas company, palace or parlor or sleeping-car company, and every oil or pipe-line company, and every fire, life, marine, or accident insurance company, doing business in this state, except mutual fire insurance companies which do not issue policies on the stock 'plan, shall pay an annual tax, for the use of the state, by way of license for its corporate franchise, as hereinafter mentioned.”

There were further provisions as to return of gross earnings, the percentage of such earnings to be paid, and the remedies for failure to pay. The law was evidently passed to place tbe taxation of suck corporations under somewhat tbe system for taxing railroads. Tbe administration of tbe law in part was delegated to tbe railway and canal commission. Tbe federal circuit judge in deciding tbe issue said:

“When tbe legislature grants a charter of incorporation, it confers upon tbe grantees of tbe charter tbe right or privilege of forming a corporate association, and of acting, within certain limits, in a corporate capacity, and this right or privilege is called tbe ‘corporate franchise.’ ” “Tbe legislative authority in making a grant of such franchise can prescribe such terms and such conditions for its acceptance and for its enjoyment as to it shall seem best.” “It is true that such grants are said to be in the nature of a contract. But if tbe right to amend or to alter or to repeal tbe grant be . . . reserved . . . tbe terms and conditions originally annexed to tbe grant, although accepted, ... do not become irrepealable contracts, but may be altered ... at tbe will of tbe grantor.” “It has seen fit to exercise this discretion, and to impose upon tbe plaintiff a new condition, upon compliance with which it can continue to enjoy tbe franchises,” being “tbe payment of an annual tax, or charge, or impost by way •of license.” “Its -franchises are preserved to it, but tbe use of those franchises is made to depend upon tbe payment of tbe license fee.” “It is difficult to imagine any other construction which will preserve tbe least harmony between the act in question and tbe constitution of tbe state.”

We have quoted thus at length because the case so clearly declares and applies the views we have expressed. The federal court, in making the decision, cited and followed the decision in Standard U. C. Co. v. Att’y Gen. 46 N. J. Eq. 270, 19 Atl. 733, which involved a railroad taxing law substantially like the one under consideration. The contention was made that the law was void under the clause of the constitution similar to our sec. 1, art. VIII. The court answered it thus:

“The fault of this position is the assumption that this tax is one upon property. Such manifestly is not the case. The law imposes a tax by way of a license for exercising corporate franchises.” “Upon the power of the legislature to impose such a tax there exists no restriction in otir constitution. As a license or franchise tax it is not within the equality clause of the constitution” in relation to the taxation of property.

Before we proceed to apply the foregoing we desire to further emphasize the idea that the railway license taxes, so called, are properly referable to the taxing power in the broad, “the just and proper sense, of the term.” The saying, they are not taxes “in a constitutional sense,” means they are not those enforced proportional contributions, from or on account of property, for the public needs, mentioned in sec. 1, art. VIII, of the constitution: taxes involving the mere reciprocal duties of support and protection as between the sovereign and those in its jurisdiction, and not characterized at any point in the process by which the contribution reaches the public treasury by implied promise to pay, in a contractual sense. It is a special form of taxation: of raising revenue, and so, properly speaking, means the exercise of taxing power. It differs from the> ordinary form, mentioned and having its special limitations in the constitution, in that it is neither direct on property nor does it involve merely the reciprocal duties mentioned. The addition to the public funds is made, in any instance, by the process of offering a privilege, under sovereign control to do so or not, and an acceptance, with the resulting element of implied promise to pay the required compensation. In that lies the contractual feature. While such process, to a greater or lesser degree, has the element of compulsion, very much as in case of ordinary taxes, yet the initiative is in the nature of an offer of something which, in contemplation of law, the sovereign may bestow or not at its pleasure, and with or without conditions, and which in such contemplation the one to whom the offer is made is at liberty to accept or reject. In case of the former alternative being chosen, by operation of law, on familiar principles, the implied promise to pay re-suits, wbicb must necessarily be of tbe same dignity as any other such promise, as regards rights and remedies. True, the interest, and in that sense the liberty, to accept or reject the offer and privilege, is much greater in case of its being contained in the charter of a corporation at the beginning than when made thereafter. True, such an offer at the start and acceptance, having no necessary reference to taxation, might doubtless be regarded as the mere sale of a privilege: a matter resting wholly in contract and so not referable to the taxing power at all. But if at the beginning, expressly or plainly, the contribution is contemplated to be in lieu of ordinary taxation, as taxation in an indirect way and in general effect, as in the instances cited in the opinion, and as is commonly the case, then it may well be regarded as a tax, in the broad sense: an exaction referable to the taxing power, with the contractual element, however, specializing it. In that view, such an exaction, it would seem, should be regarded and treated the same as one under a general law, making submission thereto a condition of continuing existing corporate privileges or business, as regards the contract feature.

Further, on the matter last mentioned, we refer to State ex rel. Bain v. Seaboard & R. R. Co. 52 Fed. 450. There an exaction of an annual payment to the state as a condition of exercising an accepted corporate franchise, the same to be in lieu of all other taxes, was held to be a matter of contract, and that it would be difficult to sustain the tax under the constitution as a property tax. The action was to recover arrearages for twenty-five years. It was held that the exaction was something due to the state, but not in the nature of taxes on property. “The right of the state,” said the court, “to collect the amount sued for does not grow out of its power to tax, but out of its power to charge a price for the franchise granted.” “It is not a tax on the property of the road.” “It is an imposition annexed to the franchise . . . ; the contract price to be paid . . . for the franchise granted.” For that reason it was said that no technical rules relating to taxes aré involved. The right of the matter depends “on the ordinary rules relating to the construction of contracts.” “The tax is a charge agreed upon between the parties and has nothing to do with anything other than the contract itself.” In that view and under the law as regards the statute of limitations on contract obligations to the state, the right to recover for the twenty-five years of arrearages was sustained.

The most serious difficulties in this case have now been cleared away, including the ground, it seems, upon which the learned trial court based the judgments appealed from. In this we assume that it was thought the matter should be treated the same as penal statutes in aid of the collection of taxes, or a police regulation, and that the words “or any part thereof,” which originated in the law of 1862, where permission to pay in instalments was granted, made the penalty apply to a part, however small, the same as to the whole. Such statutes in aid of the enforcement of duties springing from contractual relations do not seem to have been given careful, if any, consideration. Manifestly there is a wide difference between laws relating to the former and those relating to the latter-.' In construction there is quite as much difference in degree, though the manner of treatment is the same, between the two, as there is between the former and a stipulated forfeiture in private contracts. Numerous instances might be referred to, where remedial statutes to secure performance of contractual duties have been held, notwithstanding their literal sense to the contrary, to apply only to cases of failure to perform through inexcusable conduct. Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485; Johnson v. Huber, 117 Wis. 58, 93 N. W. 826, are significant cases on that in this state and have established a definite rule here on the subject. They are to the effect that excusable mistake, whether of law or of fact, prevents infliction of a statutory penalty merely designed to stimulate performance of contractual duties or punish failure to perform, iu the absence of something in the law expressly indicating to the contrary; that mere general language, covering defaults without express exception or qualification, will not be held to apply to failure of duty from honest belief, based on reasonable ground, that the circumstances existing do not give rise to duty of performance. The basic theory of these eases is that the court will apply substantially the same rule of construction to such statutes as is applicable to stipulated forfeitures in ordinary contracts, to the extent of determining whether they were intended to apply literally or not, the presumption being indulged in, that nothing absurd or unreasonable was in the legislative mind, and that when the literal sense would lead to the contrary it should-be restrained accordingly, by a somewhat arbitrary assumption that the legislature had in mind defaults only of a nature in harmony with the remedial feature provided, in the' absence of some clearly expressed indication to the contrary. That rule for construction may not, as said in Seeman v. Biemann, 108 Wis. 365, 84 N. W. 490, be very logical, but it is a just one and has been so firmly established that it may well be thought to be in the legislative mind in enacting laws, the same as it is presumed to be in the minds of parties in entering into contractual relations.

The foregoing stated principle rules these cases in favor of the appellants, unless we can discover in the law the negative indication suggested. On this the significant word “absolutely” preceding the word “forfeit” before referred to is prominent. It is suggested that the interpolation of that word made in the Revision of 1878 did not add to the word “forfeit” standing by itself. That may be so in the abstract, but it does not follow that the legislature used the additional word purposelessly. We must assume to the contrary, by a very familiar rule of construction. That assumption will not down easily under the circumstances we have here. The revisers could have joined the penal provision of sec. 184, ch. 18, R. S. 1858, the particular one involved here, and the penal provision of the act of 1860, making a perfect piece of legislation, without the use of the word “absolutely,” so industriously interpolated. We do not overlook the fact that the revisers failed to record in their notes any reason for the change. Giving due consideration to this it does not help the matter materially. We cannot escape from the conclusion' that the addition was made advisedly and for a particular purpose well defined in the minds of the revisers and the mind of the legislature. If that purpose was to negative the idea that in case of default in any respect, circumstances might efficiently excuse it and prevent the -forfeiture, then the rule of the eases cited cannot prevail. Here, again, the doctrine applies that a meaning should not be attributed to the legislature, convicting it of unreasonable or absurd action, if that can be avoided.

It goes without saying that in making a report by a railroad company of its gross earnings covering a year’s business, and making the payment which the statute requires, there is room for many mistakes of an excusable nature: mistakes involving trifling or very large sums: mistakes of law and mistakes of fact, or both: mistakes requiring the best of expert accountants, and the highest order of legal and judicial ability to determine the right of the matter. If the penal provision has the broad application contended for by respondent, upon default in payment of any considerable part of the license fee, let it be $500 or $100,000, any part, howeyer small, so long as it does not fall under the rule of cle minimis non curat lex, up to the whole, even without the circumstances characterizing the default being such as to indicate any real fault whatever, the forfeiture would be incurred, without hope of relief. The circumstances might be such as to exhaust all the instrumentalities of the law in honest controversy, before vindication of the right could be secured, ■and yet tbe forfeiture would follow just tbe same as in case of manifest fraud or inexcusable neglect. It does not seem possible tbat tbe legislature could bave so intended. Tbe contrary would shock tbe conscience of any considerate man. 'Tbe contemplation of it gives tbe judicial mind pause and compels diligent search for some other intent, fairly expressed. If tbe failure to make a correct report and pay tbe full amount could result in any permanent loss to tbe state, it might change tbe picture. There would then appear to be some warrant; perhaps a good one: an efficient one, for so •drastic a statute as tbe learned trial court regarded tbe one in question to be. But such is not tbe case, as we bave perhaps sufficiently shown.

As indicated at tbe start, we would bave preferred leaving tbe question last suggested for future decision, but the necessities of tbe situation preclude it. Tbat compelled broadening our consideration of tbe cases, so as to include several matters which would otherwise bave been omitted. Tbe whole case might, under some circumstances, bave turned on whether failure to pay would necessarily result in any loss to tbe state. In tbat condition of the law reason for a pretty harsh penalty for even a mistake would exist. A strong stimulus to exercise extraordinary care would not be unreasonable. Since there is no such danger there is no reason Tor applying so drastic a penalty as tbe one under consideration, for neglect not involving any real fault Not only is tbe right of tbe state to tbe full amount of tbe percentage of gross earnings not impaired by its having acted upon tbe '•erroneous report, but it doubtless bad tbe remedy, among ethers, to enforce tbe obligation suggested by tbe words of '•sec. 1212, tbat tbe license granted in any case shall be good for a year “unless sooner revoked.” It is suggested tbat tbe reserved power of revocation was granted with reference to tbe second half of tbe license fee payable six months after •the issuance of tbe license. We see no good reason for so restricting tbe meaning. Tbe power of revocation, it seems, was intended for nse in any case of default, tbe same as was beld in regard to licenses issued to insurance companies. Travelers’ Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407.

In fencing this case witbin tbe very narrow compass indicated, by putting outside tbe pale tbe idea tbat tbe law is referable to ordinary taxing power, tbe one that it is referable to tbe police power, and tbe idea tbat default in making voluntary payment of tbe full proportion of earnings due tbe state could prejudicially affect its right to recover tbe balance — and reducing tbe situation down to one of mere innocent breach of obligation to voluntarily pay tbe full sum of money due on implied agreement: fully remediable by action of debt as in State v. Nat. Acc. Soc. 103 Wis. 208, 79 N. W. 220, and State ex rel. Bain v. Seaboard & R. R. Co. 52 Fed. 450, leaving no reason for an absolute forfeiture to cover a possible loss — we still are confronted-by tbe fact that tbe legislature must have considerately emphasized tbe word “forfeit” by adding thereto tbe word “absolutely.” We cannot put tbat aside lightly. If put aside at all, it must be done by reasonable construction, not by arbitrary rejection because of tbe thought tbat tbe meaning of “forfeit” is not, in tbe abstract, made different by using it in connection with tbe adverb “absolutely.”

Tbe unreasonableness, nay tbe absurdity, of tbe literal sense of tbe words under consideration in view of tbe case as we now find it, compels turning aside therefrom if any way can be discovered which may fairly be said to have been 'intended by tbe legislature.

It seems tbat such a way is open and is now quite plain. Tbe legislature did not intend the forfeiture to apply in case cf excusable mistake of fact or law or both, one involving some matter of doubt or difficulty of such serious nature as to reasonably require judicial interference for its solution. We are permitted to bold tbat by familiar rules of construction. It appreciated, or must be presumed to -have appreciated, tbat the penalty was made incidental to breach of a contract obligation and that as snch it might be regarded, if the idea was not expressly repelled in some way, as open to the liberal treatment customarily given by courts to penal provisions in contracts between private persons, as intending that in case of inexcusable default the penalty should be regarded in the nature of stipulated damages, and as not affecting, in any way, liability upon the contract for arrears in case of the breach having relation to that subject. Such intent was made manifest by emphasizing the word “forfeit” by preceding it by the word “absolutely.”

Construing the law in question as indicated, as we well may, supported by the logic we have applied to the matter, clears up all obscurities, avoids all absurdities, makes the law a sensible highly reasonable enactment in all its parts, and grounds the reversal which must result from all the considerations, on a thoroughly logical basis. It secures to the state the full consideration which the law contemplated for the privilege granted, and an additional sum by way of punishment in case of any wrong that could be reasonably dignified as such upon principles of natural justice. It cannot fairly be presumed that more was intended in the absence of language not open, reasonably, to be otherwise read. The railway companies are held immune from punishment for honest and not unreasonable defaults, while being held liable to punishment for all others and to make good to the state the full consideration impliedly agreed to be paid for the privileges enjoyed. It could not be presumed that less was intended by the legislature in view of the general nature of the enactment, and in absence of language expressly, or clearly by implication, so indicating.

By the Court. — The judgment in each of the four actions is reversed, and the causes are remanded to the trial court with directions to render judgment in each thereof dismissing the same.

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Concurrence Opinion

The following opinion was filed June 25, 1906:

Dodge, J.

(concurring). I concur in the judgment of this court on the one ground, stated in the opinion, that a construction of sec. 1214, Stats. 1898, to impose the penalty •by it denounced upon an entirely innocent mistake of fact or law in a bona fide effort to comply with secs. 1211 and 1212, Stats. 1898, would be so absurd that we cannot attribute such an intention to any legislature whose acts must be presumed to be dictated by reason. The section in question is so highly penal and so drastic as to be, in effect, a criminal statute. The legislature, if exercising reason at all, could not fail to realize that in the preparation of a report of gross earnings of a great railroad there must arise multiplicity of questions of the utmost doubt and complexity as to what properly constitutes gross earnings. Are earnings on interstate business to be included ? Are receipts of money which must be repaid, such as the gross charge on mileage tickets, of which a portion is to be refunded ? Are payments made between different railroads for switching, transfer, or trackage charges, or for use of each other’s cars, earnings or only a method of keeping account of mutual accommodations, of which only the balance in favor of either road can be considered earned? The case of State ex rel. Abbot v. McFetridge, 64 Wis. 130, 24 N. W. 140, holding that only the balance of mutual account for car service is to be so considered, illustrates the opportunity for honest difference of opinion. Again, there is the probability of all sorts of errors and mistakes, even down to clerical or arithmetical ones, at the hands of the army of men of all grades of intelligence and capacity upon whose acts and statements must be based the accounts of the general offices and the report to the state. These are cogent reasons why the rules for construction and application of penal statutes announced in Schumacher v Falter, 113 Wis. 563, 89 N. W. 485, and Johnson v. Huber, 117 Wis. 58, 93 N. W. 826, should control. No fair reason to the contrary is apparent or is suggested in the opinion. It is said that such construction is not permissible to a statute imposing a penalty for failure to pay a tax for some occult and unexplained reason. A glance at the authorities cited must satisfy one that they have no application to such a statute as this, but merely to those augmentations of a tax which become part of and are collected with the tax in the same proceeding. Mr. Cooley (2 Taxation [3d ed.] 901) refers to cases where even such penalties have been denied, where nonpayment of a tax was due to a reasonable doubt of its validity. Litchfield v. Webster Co. 101 U. S. 773; Savannah, F. & W. R. Co. v. Morton, 71 Ga. 24; In re Miller's Estate, 182 Pa. St. 157, 37 Atl. 1000; Comm. v. Phil. & R. C. & I. Co. 145 Pa. St. 283, 23 Atl. 809. Beyond this one point I consider the discussion contained in the opinion immaterial and unnecessary. Much of it forestalls questions which we know to be presented in pending cases and which have not been argued at all fully upon either side.

I especially disagree with the contractual doctrine which I understand to be advanced in the opinion. Its fallacy is apparent from the consideration that the license-fee taxation in lieu of exemption of all other taxes applies as well to natural persons owning public utilities covered by it, and, if a contract, must be beyond the power of modification as to such persons, whatever reserved rights the legislature may have over corporations, domestic or foreign. I look upon the imposition under thése license-fee statutes as “taxation”' in the sense of that word in sec. 1, art. VIII, of our constitution, and think the arguments and deductions to the contrary unwarranted by anything said by this court, fairly and judicially considered, or by anything in the history of the constitutional convention.

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Concurrence Opinion

The following opinion was filed July 16, 1906:

Cassoday, C. J.

(concurring). I fully concur in the reversal of each of the four judgments in these cases. The case presented, in my opinion, fails to show that the defendants have incurred the penalty prescribed by the sections of the statutes upon which the several actions were brought. But I dissent, respectfully, from so much of the opinion of the court as holds, or tends to hold, that the exactions by the state from railway companies during the fifty years immediately preceding the present ad valorem tax law were not taxes upon property within the meaning of the provision of the constitution which declares that “the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe.” Sec. 1, art. VIII, Const. I will briefly state the grounds of my dissent.

Of course, as often held by this and other courts, that provision, though affirmative in form, is not a grant to, but a limitation upon the powers- of, the state legislature. Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 59, 8 N. W. 833; State ex rel. Graef v. Forest Co. 74 Wis. 610, 615, 43 N. W. 551; State ex rel. Weiss v. District Board, 76 Wis. 177, 210, 44 N. W. 967; State ex rel. Lamb v. Cunningham, 83 Wis. 90, 146, 147, 53 N. W. 35; Bittenhaus v. Johnston, 92 Wis. 588, 595, 66 N. W. 805. Such limitation was for the manifest purpose of protecting citizens and taxpayers from oppressive taxation. 1 Cooley, Taxation (3d ed.) 7 — 10. As “the ]bower to tax involves the power to destroy,” so, in the absence of constitutional limitation, “the only security against the abuse of this power is found in the structure of the government itself,” since, “in imposing a tax, the legislature acts upon its constituents.” McCulloch v. Maryland, 4 Wheat. 316, 428; Pollock v. Farmers’ L. & T. Co. 158 U. S. 601, 15 Sup. Ct. 912. Whether the exactions from railway companies, mentioned, constituted taxes upon such property, ought to depend upon fixed standards which all are bound to recognize. Certainly, such standards are not to be found in the process of reasoning — sometimes permissible — of inclusion and exclusion. To assert that taxes levied upon property for the purpose of revenue by a particular method give to the owner the protection of the constitutional provision quoted, but that taxes levied upon the same or a portion of the same property, or other property, for the purpose of revenue by a different method, give to the owner no such protection, is to declare, in effect, that such constitutional provision gives no protection unless the legislature happens to prescribe such particular method. In other words, it makes the question of such protection to turn upon the choice of methods by the legislature, notwithstanding the taxes in either case are levied upon property for the purpose of revenue. Certainly a limitation which is thus optional, or to be applied only when convenient or desirable, is no limitation.

In determining the question above suggested, and in view of the language of the constitution quoted, it is unnecessary to consider here such exactions, by way of taxes in the general sense, as are not based upon nor measured by property or the income of property, whether they are made under the police power of the state in prescribing regulations affecting the lives, limbs, health, comfort, good order, morals, peace, and safety of society, or as exactions for special privileges or licenses granted. The exactions of moneys under the police power are generally for the purposes of regulating the relative rights, privileges, and duties between individuals, the conservation of order, the encouragement of industry, and the discouragement of pernicious employments. 2 Cooley, Taxation (3d ed.) 1125, 1126. The exactions of moneys under the taxing power are generally for the purposes of revenue. Id. Such distinction should be observed in considering the nature of the exactions in question from railroad companies. Where a railway runs through a state or a considerable portion thereof, its value includes not only its roadbed, depot grounds, rolling stock, and right of way, but its franchises and its corporate rights to operate the same; and hence its value for the purposes of taxation can be most satisfactorily ascertained by regarding the whole railway as a unit. 1 Oooley, Taxation (3d ed.) 693-700. This seems to be expressly held in Chicago & N. W. R. Co. v. State, post, p. 553, 108 N. W. 557. It is very obvious that it would be very difficult, if not impossible, to ascertain such value through town, city, and municipal agencies, since the small section of the railroad located in any town, city, or municipality, by itself, would be of little or no value, but as constituting a part of the whole line would be of great value. Yellow River Imp. Co. v. Wood Co. 81 Wis. 554, 560, 562, 51 N. W. 1004, and cases there cited. In the language of my brother Maeshall in the ad valorem case cited: “It is the logical basis of the numerous decisions holding it to be necessary to justice and uniformity of rule in taxing laws that the property of a railway corporation be assessed ■as a unit; the physical things being regarded as merged in that produced by union with the franchise element as the one of primary importance” — citing numerous cases in support of the statement.

Seemingly inspired by such necessity, the legislature of 1854 devised a system of assessing such railway property as a unit, and fixing the amount which each corporation was required to pay at a certain per centum of its gross earnings. Ch. 74, Laws of 1854. That chapter is entitled “An act taxing railroads and plank roads.” The first section of the act required every railroad or plank road company to make out and return to the state treasurer, on or before January 10th of each year, a true and just verified statement of its “gross earnings . . . for tbe preceding year up to tbe 1st day of January.” Tbe second section declared:

“It shall be tbe duty of tbe said railroad companies and plank road companies to pay or cause to be paid to tbe treasurer of tbe state for tbe use. of tbe state, on or before tbe lOtb day of January in each year, a sum equal to one per centum of the gross earnings of their respective roads so returned, which amount of tax shall tahe the place and he in full of all of tbe taxes of every name and kind upon said roads, or other property belonging to said companies, or tbe stock held by individuals therein, and it shall not be lawful to levy or assess thereupon any other or further assessment or tax for any purpose whatsoever.”

That was followed by a provision applicable when tbe road was partly in this state and partly in another. Secs. 3 and 4 of that chapter prescribed penalties for failure “to comply with tbe requirements” of tbe act. Sec. 5 of tbe act made it tbe duty of tbe treasurer of tbe state to '

“ascertain, as near as may be, tbe gross earnings of such delinquent company, and assess thereupon tbe said one per centum, and shall seize and lay upon tbe whole or any part of tbe property, rights, and franchises of said company, and after giving ten days’ public notice of tbe time and place of sale, shall proceed to sell at public auction tbe same, to satisfy tbe amount thereof, together with all costs and disbursements . . . incurred in making such assessments and sale thereof.”

That act went into effect April 10, 1854. It appears upon its face to have been for tbe sole purpose of raising and collecting public revenue “for tbe use of tbe state.” This is conceded in tbe opinion filed. There was nothing in tbe act regulating or attempting to regulate such roads in any way. It certainly was not a police regulation. It was purely a revenue measure, and hence, as indicated, a method of levying, assessing, and collecting taxes from such companies, “which amount of tax” was to “take tbe place and be in full of all of tbe taxes of every name and kind upon said roads;” and it was therein declared not to “be lawful to levy or assess thereupon any other or further assessment or tax for any purpose whatsoever.” Such prohibition against such levy or assessment thereupon of “any other or further assessment or tax” was in effect declaring that the exaction made by the act itself was the assessment and levy of taxes. Except as to a slight change as -to the time for making the return to the state treasurer, such statutes continued in force until 1860. Secs. 182 — 186, ch. 18, R. S. 1858; ch. 140, Laws of 1859.

Notwithstanding the plain language employed and the express purpose of the act, it is now said that ch. 74, Laws of 1854, did not impose a tax on railroad property, nor a tax at all, within the meaning of sec. 1, art. VIII, of the constitution ; and this seems to be put upon the ground that this court so held more than fifty 'years ago, and that such ruling was thereafter repeatedly sanctioned. The case referred to is known as the Wauhesha, Gase, and was decided by this court November 17, 1855. The action was by the railway company to restrain the local authorities from collecting taxes assessed in the ordinary way during the year 1854 upon the roadbed, depot grounds, and fixtures in the town of Eagle, on the ground that such property was expressly exempted by ch. 74, Laws of 1854. The defendants demurred to the bill, principally on the ground that the act was unconstitutional. In overruling the demurrer Judge Hubbell, before whom the cause was tried at the circuit, in his written opinion, after stating the substance of the act above quoted, uses this significant language:

“The defendants contend that under the law in question the rule of taxation is not uniform: (1) Because it establishes a rule of taxation for property belonging to companies mentioned, differing from the general rule applicable to the taxation of other property; it being a tax upon income, instead of a ratable tax upon vdlue. ' (2) Because it levies a state tax, and exempts from town, county, and district taxes. (3) Because it establishes a new mode of levying taxes, differing from the general rule. ... I am compelled to dissent from all the positions taken by the defendants.” 9 Wis. 434.

The plain meaning of this language is that the act in question was not in violation of the constitutional rule of uniformity by exacting “a tax upon income, instead of a ratable tax upon value,” nor because it “levies a state tax, and exempts from town, county, and district taxes,” nor “because it establishes a new mode of levying taxes differing from the general rule.” The whole scope of the opinion is to the effect that such “tax upon income” was not in violation of the constitutional rule of uniformity. Among other things he says, in effect, that the act “operates as a partial exemption from general taxation.” 9 Wis. 433-436. True, as stated in the opinion filed, he said: “I regard the payment to the state, not as a tax, but as a tonus or compensation for the exemptions granted.” But he said in the same connection that “the whole substance and effect of the law is to release those companies absolutely from all ordinary taxes for ordinary purposes, upon condition of an annual payment to the state.” He then answered the contention of the defendants, that the rule of uniformity was violated because “the amount of such tax” was “regulated by the amount of annual income,” instead of the “value” fixed by the “assessors,” by saying:

“But all railroad and plank road companies in the state are made subject to the same rule. It is doubtless a departure from the general law, and amounts to a declaration that- this class of property shall have a rule by itself. ... I have never found a judicial decision holding that, because one class of property paid one rate of duty and another class a different rate, the duties were not uniform. ... So long as each class of property in every part of the state and under like circumstances is subjected to the same rule, it is difficult to see how the principle of the constitution is violated; much less how the law is so grossly and palpably wrong as to warrant the interference of the courts, declaring it absolutely void. . . . Under every view which I have been able to take of this case, I cannot but regard the act of April 1, 1854 (whether its provisions be wise and equal, or otherwise), as within the constitutional power of the legislature, and therefore valid9 Wis. 435, 436.

I find no statement nor intimation in that opinion tending to support the proposition now advanced that the exactions prescribed by ch. 74, Laws of 1854, were not to be enforced as taxes levied upon property within the meaning of the constitutional provision quoted. That opinion was published in 3 Am. Law Reg. (May, 1855) 679-683. The syllabus recites the constitutional provision quoted and the substance of the act mentioned, and also the ruling of the court as follows:

• “Held, that this act was not unconstitutional, though the annual assessment on railroad companies was to be on income, instead of on property as in other cases, and though the companies were exempted thereby from town, county, and district taxes.”

Judge Hubbell was an able and learned lawyer and had previously been a member of this court under the old organization. The appeal from the order overruling the demurrer was argued for six days in this court in July, 1855; but the case was not decided until November 17, 1855, when, as appears from the record of this court, the “order of the court below overruling [the] demurrer to the bill [was] affirmed, with.costs.” The writing of the opinion in the case fell to the lot of Mr. Justice Smith, who was then the reporter of the court, and continued to be such reporter not only during the balance of his term, but for a year thereafter. Had the case been reported in its order it would have appeared in vol. 4 of Wisconsin Reports; but it was never reported until Justice Smith ceased to be a member of the court, and then only as a note to the Knowlton Gase, in 9 Wis. 431-449. But, no opinion of the court was ever prepared by Justice Smith, nor by any one, notwithstanding the fact that the papers in the case were apparently retained for that purpose until Eebruary 4, 1857, when they vyere transmitted to the trial court. 9 Wis. 428. Had an opinion been prepared by Justice Smith, as contemplated at the time the case was decided, yet it could not have been filed as the opinion of the court until concurred in by Chief Justice Wiiiton and Justice Cole, or one of them. Four years after that decision, and after Justice Smith ceased to be a member of the court, Justice Cole, in his dissenting opinion in the Knowlton Gase, said:

“Though no opinion has been prepared, yet the points decided were written out by one of the members of the court, and, as he informs me, placed upon file with the papers in the case. It appears that the paper containing these points has been misplaced, or cannot now be found. Still I supposed the ground of that decision was well understood throughout the state.” 9 Wis. 428.

Obviously Justice Cole did not know, until so informed by Justice Smith, that such paper had been “placed upon file with the papers in the case,” and there is no'evidence that Chief Justice Whiton ever knew such to be the fact. In reporting the case Justice Smith fails to state that such paper had been placed upon file. All he said in respect to that statement is this:

“The following paper contains all the opinion of the court which has been written, . . . and which has been discovered since the opinions in Knowlton v. Supervisors of Rock Co. were written.”

The omitted words relate wholly to the order of affirmance, which was so of record in this court and hence open to inspection.

In writing the opinion of this court in the Knowlton Case, Dixon, O. J., speaking of the Waukesha Case, 9 Wis. 431, said: “Upon examination of the records and files of the court in that case, we can find neither headnote nor opinion. As a matter of fact, we are told that none were ever written.” 9 Wis. 424. Subsequently the same chief justice stated that the statement of points there published was obtained “from one of the attorneys in the” Waukesha Case and “inserted by the reporter.” 15 Wis. 467, 468. In Justice Dole’s dissenting opinion in that case he said, among other things:

“This court did not decide, as has been intimated, that the law of 1854 did not impose a tax in the just and proper sense of that term, but was a payment made to the state by the several corporations to which the law applied in the nature of a bonus or compensation for the exemption granted. . . . The division of property into real, personal, and mixed, we considered a mere arbitrary division, which the legislature might or might not regard in the imposition of taxes. The legislature might adopt other classifications of property, imposing the tax upon those various classifications or kinds of property, and the rule of uniformity would be preserved, so long as the same rule of taxation was laid upon the same kind or class of property throughout the state, or the local division for which the tax was raised. Eor instance, the legislature might prescribe that all the railroad and plank road property in the state should pay one per centum of the gross earnings of their respective roads in lieu of all other taxes, as was done by the act of 1854, and yet this law would be valid, because it applied to all of that kind of property in this state. It was a uniform rule upon that class of property within the requirements of the constitution.” 9 Wis. 428.

Bo one will question the integrity of Justice Cole, and no one would think of doubting the accuracy of his statements thus made, unless he supposed he had unmistakable evidence to the contrary. In my judgment the language of Justice Smith, in the paper mentioned, is to the same effect as the language of Justice Cole above quoted and the language of Judge Hubbell in deciding the case above quoted. Justice Smith’s paper declared:

“The imposition upon railroad property by the act of 1854 does not violate that provision of 'the constitution of Wisconsin which provides a uniform rule of taxation, provided like property pertaining to railroads, or all property of that class, is alilce taxed, or aliJce exempt, as it appears to be. . . . Tbe state baying exempted tbis class of property from any tax whatever (except the one per cent.), which it had tbe right to do, provided it exempted all property of tbe same class uniformly, cannot be permitted to repudiate its own act and demand a levy under tbe general law, from tbe operation of which it bad granted the exemption.” 9 Wis. 449.

The plain meaning of this language is that ch. 74, Laws of 1854, did not violate tbe rule of uniformity because it prescribed a different method of taxing railroad property from other property, since it “alike taxed or alike exempted” all property of that class, and that by the act in question tbe state bad tbe right to exempt from taxation all that class of property, except “a sum equal to one per centum of the gross earnings” of tbe respective roads, since tbe act exempted all property of the same class. In other words, it re-affirmed tbe ruling of <Tudge Hubbell in that case, to the effect that railroad property could be classified for tbe purposes of.taxation “so long as each class of property in every part of tbe state and under like circumstances is subjected to tbe same rule,” and hence that railroad property could be classified by itself without violating tbe rule of uniformity. That was intended to answer the contention of Mr. Ryan to the contrary under tbe second bead of bis brief. 9 Wis. 439 — 444.

Having thus solemnly held, in effect, that under tbe constitution tbe legislature had power to prescribe the property upon which taxes should be levied and to classify such property for tbe purposes of taxation, and to put all railway property into a class by itself, and to enforce payment of exac-tions made on account of tbe same in tbe manner prescribed, it is difficult to understand bow tbe same court in tbe same action could consistently hold that ch. 74, Laws of 1854, did not provide for imposing “a tax on railroad property, or a tax at all, within tbe meaning of sec. 1, art. VIII, of tbe constitution.” Certainly no such inconsistency should be attributed to tbe decision of November 17, 1855, unless tbe evidence is unquestionable. I find no such evidence in Justice Suite’s paper. The balance of that paper not quoted above reads as follows:

“If the act of 1854, having relation to this class of property, was not passed in a -constitutional manner, as it is claimed .appears by the records or journals of the legislature, so, by like evidence, it would seem that the law by which the board of supervisors attempted to assess this property was unconstitutionally passed; and, admitting the premises, the injunction is proper, the bill covering such a case. But the court do not think the law of 185U does impose .a tax within the meaning of the constitutional __provisions, and therefore the law of 1854 is valid, so far, at least, as the government is concerned.” 9 Wis. 449.

Manifestly, the first portion of this quotation has no reference to the rule of uniformity prescribed by sec. 1, art. VIII, of the constitution, but relates entirely to the1 first point made in the brief of Mr. Ryan, to the effect that ch. 74, Laws of 1854, was a “law which imposed a tax,” but was not passed by a yea and nay vote entered upon the journals of the legislature, as prescribed by sec. 8, art VIII, of the constitution. 9 Wis. 436-439. According to the paper the court assumed that if it so appeared “by the records or journals of the legislature,” as claimed by Mr. Ryan in support of his demurrer, then it also' appeared “by like evidence . . . that the law by which the board of supervisors attempted to assess this property was unconstitutionally passed,” and hence no justification to the defendants. The only possible ground for an inference in support of the prop-^ osition advanced is the use of the word “provisions” in the next clause of the quotation, or rather the use of the letter “s” at the end of that word, making it plural instead of singular. The language of that clause is significant. The word “but,” at the beginning, indicates a continuance of the answer to Mr. Ryan’s contention that the act mentioned was never passed by a yea and nay vote entered upon the journals, as required by sec. 8, art. VIII, of the constitution; and the words “üie law of 185k- does impose a tax” relate to what is said in that section, and not to anything said in sec. 1, ■art. VIII, of the constitution. That had been fully covered in the other portion of Justice Smith’s paper above quoted. Certainly, there is a broad distinction between a law imposing a tas and a statute prescribing a method of levying a tax upon property, or making an exaction in lieu of a tax •on .property.

In view of the language of that paper, and the facts stated, and what was said by Justice Cole, it is very clear to my mind that this court, in the case referred to, decided four propositions November W, 1855, to the effect: (1) Oh. Raws of 1854, did not impose a tax within the meaning of •sec. 8, art- VIII, of the constitution, which required the vote ther’eon to be taken by yeas and nays and entered on the journal. (2) If it did, it also appeared by like evidence that the statute under which a general assessment of this same property was assessed by the defendants was not passed by such yea and nay vote, and hence was no justification for the defendants. (3) Under sec. 1, art. VIII, of the constitution, the legislature had the power to prescribe the property upon which taxes should be levied, and to classify such property for the purposes of taxation, and to put all railway property in a class by itself, and to enforce payment of ex-actions made in the manner prescribed in the act mentioned. ■(4) That act did not violate the rule of uniformity by prescribing a different method and rate of taxing railroad property from other property, since the exaction in lieu of taxation and the exemption therein made apjilied alike to all that class of property throughout the state.

The question recurs whether such power to classify property for the purposes of taxation and to make exactions in lieu of taxation has since been permanently negatived by the decisions of this court. It must be admitted that November 9, 1859, and. several months after Chief Jnstice Whitoh and ■Justice Smith had ceased to he members of this court, and against the judgment of Justice Cole, this court, in an opinion -written by Chief Justice Dixon, concurred in by Justice Paute, constituting a majority, brushed aside the decision of November 17, 1855, with the remarks that “upon examination” they found “neither headnoie nor opinion” among “the records and files of the court in that case,” and had been “told •that none were ever written,” and that “from the best information” they had obtained they had learned “that it was ■determined by Re court that no question of the exercise of the taxing power was involved in it.” Knowlton v. Rock Co. 9 Wis. 410, 424. In that case the opinion of the court (with Justice Cole dissenting) declared that sec. 1, art. VIII, of ■the constitution prohibited the legislature from classifying property for the purposes of taxation and then taxing one class at a different rate than another class. Among other things it is there said:

“ ‘The rule of taxation shall be uniformthat is to say, the course or mode of proceeding in levying or laying taxes shall be uniform. It shall in all cases be alike. The act of levying a tax on property consists of several distinct steps, such as the assessment or fixing of its valué, the establishing of the rate, etc.; and, in order to have the rule or course of proceeding uniform, er Ji step taken must be uniform. The valuation must be uniform, the rate must be uniform.” 9 Wis. 420, 421.

January 4, 1860, two cases were decided by this court in which that' case was approved so far as deemed applicable, both relating to special assessments, which were held to be an exercise of the taxing power and limited by sec. 1, art. VIII, of the constitution, as modified by sec. 3, art. XI, of the •constitution. Weeks v. Milwaukee, 10 Wis. 242, 270 (see p. 262); Lumsden v. Cross, 10 Wis. 282, 289 (see. p. 284)-In this last case it was expressly held that “all taxes levied for the purpose of revenue and for the support of the gov-eminent, as well for tbe expenses of municipal corporations as for tbe state at large, must be levied in accordance with tbe uniform rule prescribed by sec. 1, art. VIII, of tbe constitution.”

Tbe case of State ex rel. Att’y Gen. v. Winnebago L. & F. R. P. R. Co. 11 Wis. 35, came before tbis court on the return to tbe alternative writ of mandamus to compel tbe plank road company to pay to tbe treasurer of tbe state $105,000, being a sum equal to one per centum of its gross earnings for two years, and wbicb it bad failed and neglected to make return to tbe state treasurer and pay, as required by law. Ob. 14, Laws of 1854; secs. 182, 183, cb. 18, R. S. 1858. Tbe company moved to quash tbe writ on tbe sole ground tbat tbe statutes cited were in violation of tbe constitutional provision wbicb declares tbat “tbe rule of taxation shall be uniform, and taxes shall be levied upon sucb property as tbe legislature shall prescribe.” Sec. 1, art. VIII. Tbe ease presented for consideration tbe same questions involved in the case decided November 17, 1855. Both cases arose under the same statutes, the only difference being that the former action was brought by tbe railway company and the latter action was against the plank road company. The opinion of the majority of the court was written by Justice PaiNe, and, as bis opinions usually were, in language too plain to be misunderstood. After speaking of tbe uncertainty of the points decided in tbe Waukesha Ca, 9 Wis. 431, and tbat it was “common for all courts to review their own decisions,” be declared that, “in view of its peculiar circumstances,” be deemed it “eminently proper [for tbat case] to' be reconsidered.” He then said tbat if it was decided in tbat case “tbat tbe law taxing rail and plank road companies” was “a compliance with tbe constitutional requirement of a uniform rule, it was in tbis respect overruled by” tbe Knowlton Case. Then, after reconsidering and rediscussing the question, tbe majority of tbe court, adhering to tbe rule as stated in tbe Knowlton Case. beM tbat the legislature had no power to divide property into different classes, preserving equality in each class though fixing a different rate in the different classes, but that, on the ■contrary, the rule of taxation.must be general, and applicable to all taxable property alike, and that the rule of uniformity “was designed to secure equality in the burden as between the different kinds of taxable property.” 11 Wis. 35, 38 — 42. The opinion then states that “the only remaining question is whether the imposition upon the plank road company is a tax within the meaning of the constitution.” 11 Wis. 42. It then answers the several attempts of counsel to distinguish it from a tax, to the effect that, although assessment on valuation was the usual and general mode of imposing a tax, yet that it was not essential; that the “difference in the mode would not prevent its being a tax;” that there was “certainly no room for the pretense that this is [was] a bonus for the granting of the charter;” that there was no ground for claiming “that the bonus was a mere proposal or offer of a bargain or contract,” since “the tax was absolute and imperative, leaving nothing to the discretion of the taxpayer.” It is then saM, in effect, that the exaction cannot be maintained as a license, which is an “authority granted to do that which the licensee might not legally do without it.” The opinion continues:

“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 legislature in granting licenses for anything that may in its nature be the subject matter of a license. But we do not think they could license the owners of a particular class of property to be exempt from the payment of full taxes on the payment •of a less sum. That would obviously be no exercise of the police power, but could only be resorted to as a mere evasion •of the constitutional rule of uniformity, and that is,the only kind of a license into which this act taxing rail or plank roads can by any possibility be construed. It is not a license to exercise the rights granted by their charters, for that right the charters themselves give, and this act does not profess to give. It grants only tbe right to be exempt from all other taxation on the payment of a specific tax of one per centum of their gross earnings. The legislature did not call this a license, but honestly called it a tax, as it is- beyond ail ques-tion11 Wis. 45.

Justice Cole dissented from the proposition that the legislature had no power to classify property for the purposes of taxation, and then to tax one class at a different rate than another; but he never dissented from the proposition that the exaction of a sum equal to one per centum of the gross earnings of rail and plank road companies was a tax within the meaning of the uniformity clause of the constitution. On the contrary, he always contended that it was a tax, and a valid tax, on all that class of property. So it appears that March 6, 1860, this court in that decision unanimously held that such exaction upon such gross receipts was a tax on the property of such companies, within the meaning of sec. 1, art. VIII, of the constitution — a proposition which does not seem to find favor at the present time.

Sixteen days after the announcement of that decision, and on March 22, 1860, the governor of this state approved of two bills which had just before passed the legislature. One was entitled “An act exempting certain property therein named from taxation,” and declared:

“The track, right of way, depot grounds, and buildings, machine shops, rolling stock, and all other property, necessarily used in operating any railroad in this state, belonging to any railroad company, are hereby, all and singular, declared to be, and they shall henceforth remain, exempt from taxation, for any purpose whatever, and it shall not be lawful to assess or impose taxes upon any property before named.” Ch. 173, Laws of 1860.

Such exemption was subject to a proviso as to special assessments and taxes on property not connected with such roads, and .excepting therefrom railroads operated by horse power. Tbe other was entitled “An act regulating railroads.’’ The first section declared:

“All railroad companies now organized, or that may hereafter be organized, in this state, and having a railroad completed, in whole, or in part, and being operated or used, shall hereafter be compelled to apply for, and obtain, in the manner hereinafter directed, a license for the operating of their respective roads, and to pay for such license, to the treasurer of the state, as a fee or charge therefor, a sum equal to one per centum of the gross earnings of their respective roads.” Ch. 174, Laws of 1860.

Secs. 2 and 4 fixed the tifue for making return to the state treasurer of the amount of such gross earnings, and applying for such license and paying for the same, substantially as prescribed in secs. 182, 183, ch. 18, E. S. 1858, as amended by ch. 140, Laws of 1859, omitting therefrom plank road companies. Sec. 3 prescribed a penalty and forfeiture for any failure to comply with the act, with a proviso. Sec. 5 repealed secs. 183, 186, ch. 18, E. S. 1858; and sec. 6 excepted from the act railroads operated by horse power.

These two acts were not only pending at the same time and approved by the governor on the same day, but they appear on their face to have one common purpose, as complements of each other. With some change of phraseology and omitting the provisions in respect to plank roads, they were, together, in substance the same as the prior statutes above considered (eh. 74, Laws of 1854; secs. 182 — 186, ch. 18, E. S. 1858). Horse railroads are expressly excepted from each, and neither applied to plank road companies. The one exempts from taxation such property of the railway companies as is used in operating the respective railroads for which the license is granted, leaving all lands owned by such companies, not adjoining the track, subject to all ordinary taxes. The sole purpose of the two acts together was to secure from the respective railroad companies, each year, “a sum equal to one per centum of the gross earnings of such road.” While the one was entitled “An act regulating railroads,” yet it contained no regulation nor attempt at regulation. The only object of the two enactments was to secure for the use of the state the revenue mentioned. The exaction of such percentage of the gross earnings of the property so exempted, though in form “as a fee or charge” to be paid “for a license for the operating of their respective roads,” was nevertheless essentially an annual tax on the respective companies for the amount stated, in consideration -of such exemptions. While that act was, undoubtedly, inspired by previous rulings of this court, yet it is true that sixteen days before that enactment Justice Paine, with Dixon, O. J., concurring, declared, in the language above more fully quoted, that such exaction by way of license issued under the circumstances mentioned “could only be resorted to as a mere evasion of the constitutional rule of uniformity.” 11 Wis. 45.

' The Kneeland Case was decided after that enactment, but was based upon facts existing prior to the enactment. It was brought to restrain the issuing of tax deeds on Kneeland’s property, which had been sold for taxes for the years 1858 — 59, on the ground that the assessors had knowingly and intentionally omitted to assess the property of railroad companies of the value of $500,000, The city justified such omission under ch. 74, Laws of 1854, and sec. 183, ch. 18, K. S. 1858, and the trial court held in favor of the city and dismissed the complaint, and Kneeland appealed to this court; and upon the first'hearing the judgment was reversed and the cause remanded with direction to enter judgment in favor of the plaintiff. 15 Wis. 454-466. In writing the opinion of this court, in reaching such conclusion, Justice Paine starts out with the statement that in the case of State ex rel. Att’y Gen. v. Winnebago L. & F. R. P. R. Co. 11 Wis. 35, “this court decided that the law which attempted to make railroads and plank roads taxable by a different rule from that applicable to the general mass of taxable property was unconstitutional.” This was said on the theory that the ex-actions made from such companies by the statutes just cited were necessarily taxes upon property within the meaning of sec. 1, art. VIII, of the constitution, and there is no intimation in that opinion that such exactions were not such taxes. 15 Wis. 458 — 466. The only hesitancy expressed in holding the act, so taxing railroads by a different rule than other property, to be invalid, was the fact that in the Waukesha Case, 9 Wis. 431, the same act had “been once declared valid by this court.” 15 Wis. 461. In view of that decision, and the fact that the departure therefrom had resulted in invalidating all the taxes in counties where railroad property was located, the court was urged to retrace its steps and “hold the law taxing railroads to have been constitutional.” 15 Wis. 462. But the court finally concluded “that the consequences of going backward’ might, “after all, be more disastrous than those of going forward.” The opinion then states the point at issue and the result of going backward in this unmistakable language:

“But, if we go backward, we must say that particular classes of property may be taxed at less rates than others, and that the legislature -may make whatever discrimination they please in the rates of taxation, provided only that each class is taxed alike.” 15 Wis. 463.

On a motion for a rehearing'being'made the same was granted, and opinions filed thereon by Dixon, C. J., and Justice Paine. 15 Wis. 467—474. The gravity of the situation sufficiently appears in those opinions. Among other things, Dixoet, C. J., said:

“The interests involved are immense, and the consequences of adhering to our late decision beyond calculation. The taxes for a series of years in a great state like this cannot be annulled, and every proceeding connected with and depending upon them overturned, without a shock which must be felt by every property owner and citizen of the state.” 15 Wis. 468. “I do not see bow tbe errors of the past are to be corrected, except by the levy of a new tax to make np all former deficiencies. I have tried to persuade myself that a reassessment and relevy of the taxes for those years was practicable, bul I am satisfied it is not.” 15 Wis. 469. “It seems to me that, as to the particular species of property in question before the court in 1855, I must return to the rule then established.” 15 Wis. 469. “As I have before said, my mind is in great perplexity and doubt, but upon the whole I can see no other way than to go back.to the rule established by the court in 1855.” 15 Wis. 471.

The opinion of Justice PaiNe on that motion is equally significant. Among other things he said:

“I have become satisfied that, if we adhere to the decision already announced in this case, it will invalidate not only the taxes in those counties where there was rail and plank road property, but also the entire taxes of the state; for the omission of that property in the counties where it was located necessarily disturbs the proportions as between them and the other counties in the state equalization. Another case has also been argued, in which it was claimed that the principles of our decision must also invalidate the laws of 1860, professing to exempt railroads entirely, and then requiring them to pay a license. It is said that this is in substance the same thing as the law of 1854 under another name. And I am satisfied also that this is so-. We cannot, while adhering to our 1860, unless we are prepared to say that the legislature may decision in the” Plank Road Case, “sustain this legislation of do that indirectly which it cannot do directly; that it may, by merely calling things by wrong names, sustain the most palpable evasion of a constitutional provision.” 15 Wis. 4J2.

Then, after reiterating his conviction “that a rule taxing different kinds of property at different rates is not a uniform rule,” he declared it to be his “duty to return to and follow, though” he could not defend, the Waukesha Case, 9 Wis. 431; that, notwithstanding the uncertainty as to the decision in that case, it was known “that upon some ground” the court “sustained the law of 1854,” and “that all the taxation of the state and all the private transactions growing out of it” bad “since been conducted on tbe theory of its validity,” and hence that that decision should be regarded as imperative authority and the decision in the Plank Road Case, 11 Wis. 35, overruled. 15 Wis. 473, 474. After the ease had been re-argued Justice PaiNe wrote another opinion on behalf of’ the court, and in doing so stated that ordinarily he would content himself “without adding anything to the opinions” he-had “already filed in the case,” but in view of the fact that “the positive conviction, stated in granting” the rehearing,, that it was the duty of the court to retrace its steps and follow the Waukesha Case, had “been assailed by eminent counsel,” he briefly stated the reasons for adhering to such convictions. 15 Wis. 692. The opinion then discusses at some length the-maxim stare decisis on the assumption “that there was a decision of this court sustaining the validity of the law of 1854 taxing rail and planic roads.” 15 Wis. 692, 695. The opinion then answered the contention that no such assumption could be indulged, “based entirely upon the fact that no written opinion was filed in the Waukesha Case as the statute required.” The opinion then states that Justices Smith and Cole

“both agree that the court decided that the act of 1854 was not a violation of the constitution. We get this from a written statement of the points decided, made soon after the decision, by the judge then acting as reporter, and to whom the duty was assigned of writing the opinion, which statement was sent to one of the counsel in the case for his information; and from the statements of Mr. Justice Cole, now on the bench. . . . The only discrepancy is that the statement of Justice Smith shows that the court did not think that the law of 1854 imposed ‘a tax within the meaning of the constitutional provisions,’ while Justice Cole states that they did ‘not decide that it did not impose a tax,’ etc. But the difference is wholly immaterial, inasmuch as both statements show the court held that, even if it was a tax, it was no violation of the rule of uniformity. Both show that the law was decided to be no violation of the constitution.” 15 Wis. 695.

Dixon, C. J., Rad already stated “that no opinion or statement of the points decided . . . was ever placed upon the files of this court,” hut that such statement “was afterwards •obtained . . . from one of the attorneys in the former case and inserted by the reporter.” 15 Wis. 467.

Obviously, neither Dixon, O. J., nor Justice Paine had much faith in the claim based upon the word “provisions,” contained in one clause of the statement, to the effect that the act of 1854 did not impose a tax on property, within the meaning of the uniformity clause of the constitution, especially against the. statement of Justice Cole, above quoted, that no such decision was made. This is manifest from the fact that each of the several opinions of Judges Dixon and Paine, mentioned, was made to turn upon the power of the legislature to classify property for the purposes of taxation and then to tax each class at a different rate; Thus, Justice Paine in the Kneeland Case said in behalf of the court:

“But, if we go backward, we must say that particular ■classes of property may he taxed at less rates than others, and that the legislature may make whatever discrimination they please in the rates of taxation, provided only that each class is taxed alike.” 15 Wis. 463.

Since the court did “go backward” and affirm the judgment, instead of reversing it, the court necessarily sanctioned the legislative power of classification and discrimination so far as taxing rail or plank roads was concerned. Certainly •Justice Paine did not intend to go back to an assertion of Justice Smith which he deemed “wholly immaterial.” That is made plain in another case in the same volume^ where this •court refused to overrule the Knowlton Gase, but expressed itself as being bound by the decision in the Waukesha, Oase, and then declared: “But we shall follow that decision no further than the exact point decided; that is, to sustain the validity of the act of 1854 taxing rail or planlc roads.” Knowlton v. Rock Co. 15 Wis. 600, 601.

The ruling in the Kneeland Gase “as to the constitutionality of the law taxing railroad companies a per cent, upon their gross earnings” was affirmed in Dean v. Gleason, 16 Wis. 1. The history of such adjudications was partially stated in Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 64—77. As stated by Justice PaiNE in the Kneeland Gase, “the laws-of 18*60” (chs. 173, 174, Laws of 1860) “professing to exempt railroads entirely, and then requiring them to pay a license,” were “in substance the same thing as the law of 1854 under another name.” As already indicated, those two chapters together constituted a single plan or scheme for taxing railroads. With some slight changes, increasing the percentage and otherwise, they were continued in the Revisions of 1878 and 1898, and down to the ad valorem enactment. This is, in effect, conceded in the opinion filed. Time, the-substance of ch. 173, Laws of 1860, was placed in the section exempting property from taxation (subd. 14, sec. 1038, R. S. 1878, and Stats. 1898); and the substances of ch. 174, Laws of 1860, exacting a percentage on gross earnings, were placed in the chapter on the “Taxation of Railroads” (secs. 1211— 1214, R. S. 1878, and Stats. 1898). But, nevertheless, the two chapters are still to be regarded as together constituting the same scheme or plan for taxing railroads. They were complements of each other, and no legislature would grant the exemption without some exaction. Thus it was held by this court, in an opinion written by DixoN, O. J., that “the payment oí this sum into the state treasury, and which is called license money, must, in the light of past legislation upon the subject, be regarded as, in the judgment of the legislature, an equivalent for the taxes which those companies would otherwise be required to pay, if assessed and taxed according to the ordinary method prescribed by law.” Milwaukee & St. P. R. Co. v. Crawford Co. 29 Wis. 116, 123, 124; Milwaukee & St. P. R. Co. v. Milwaukee, 34 Wis. 271, 277, 278. In this last case it was held that “the statute is to be fairly and liberally construed in favor of the railroad companies, which do not receive such exemptions as a bonus, but are required to pay into the state treasury an equivalent for taxes in the shape of a license.” In a later case, construing the sections of the Statutes last cited, it was held that “statutes imposing license fees, which are to all intents and purposes taxes, should -be governed by the same rules of construction as those imposing taxes so nomine.” State ex rel. Abbot v. McFetridge, 64 Wis. 130, 140, 24 N. W. 140. The court there said: The statutes “impose involuntary burdens for revenue purposes upon -those who operate railroads. These impositions are called license fees, but in their objects and effects they are in the nature of taxes. Manifestly, the same rules which prevail in the construction of statutes imposing taxes eo nomine should be applied to statutes imposing such license fees.”

In view of the adjudications of this court above cited, I would not feel at liberty to hold that the legislature had no power to place railroad property in a class by itself for the purposes of taxation and to tax the same at a different rate and by a different method than other property, even were I to concede, as an original proposition, the correctness of the ruling in the Knowlton Case and the Flank Food Case— much less to hold that a tax upon the gross earnings of railway companies was not a tax on property within the meaning of the uniformity clause of the constitution. But I do not concede such rulings to have been correct. In an opinion written more than a quarter of a century ago, concurred in by Chief Justice Cole and Justices Lyoet and Tayloe, the writer pointed out the fact that the uniformity clause of our -constitution did not contain the word “equal” or “value,” or the equivalent of either of those words, like other constitutions cited. Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 60-88, 8 N. W. 821; Bacon v. Board of State Tax Comm’rs, 126 Mich. 22, 85 N. W. 307, 60 L. R. A. 361, 363, note. And •so the conclusion was there reached that, in the absence of such restrictive words in that clause of our constitution, the words “the rule of taxation shall be uniform” should not be •construed as including the word “equality” or “value,” or the equivalent of either. And so it was there said that that clause in our constitution

“simply requires that 'the rule -of taxation shall be uniform.’ But who makes the rule which is thus to be uniform ? Was it made by the constitutional convention, or was it left for the legislature ? Most of the constitutions referred to, where the word 'uniform’ has been used, have directly or indirectly applied it to property named therein, or valuation, or rate, or taxes, or classes of subjects; but in our constitution it applies to none of those things, but simply to the ‘'rule of taxation.’ What is this rule of taxation? Manifestly, it is the act of levying a tax, or imposing taxes, on the subjects of the state by the legislative power of the state. It is the measure of in•dividual duty in support of the public burdens, and the means •of enforcing the same. The rule of taxation is the law of taxation. Such rule or law must be prescribed by the legislature, as well as the property to which it is to be made applicable. But the uniformity does not go directly to the property so prescribed, but only to the 'rule’ or law by which contributions are enforced against the owners of such property. The uniformity reaches the property so designated by the legislature, but only through the 'rule’ or law prescribed. As the uniformity could through the rule or law only reach such property as the legislature should designate as being subject to taxation, it is very evident that it never could reach property not so designated, and therefóre exempt from taxation, and hence to which the rule could not apply. The legislature has the exclusive power to designate the property which shall be subject to taxation, and to prescribe a rule or law by which the owners of such property are forced to contribute to the public burdens, limited only by the requirement that the rule so prescribed shall be uniform. Uniformity of rule is entirely different from uniformity of subjects to which the rule is applicable. Most general laws are uniform rules, but the diversities in the subjects to which they apply are innumerable. In determining just what the rule of uniformity shall be in taxation, and how it shall be applied, there is a wide field for legislative discretion. Of course, it could be applied to rate or valuation, or mode or manner of assessment or collection, or all exemptions might be repealed or greatly-modified; and so it could be applied to all property, or to certain subjects, or to certain classes, kinds, or species of property. The denial of the power of the legislature to determine and fix The rule of taxation,’ subject to the limitation of uniformity, and tbe attempt to engraft it upon the constitution itself, as had been done by apt words in other constitutions, has led to much diversity of opinion, if not confusion of terms.”. 52 Wis. 93, 94.

This certainly was in conflict with the conclusion reached in the Knowlton Case and the Plank Road Case, where, although it was conceded to apply to the “course or mode of proceeding in levying or laying taxes,” yet it was also said that such

“course or mode of proceeding . . . shall in all cases be alike. The act of laying a tax on property consists of several distinct steps, such as the assessment or fixing of its value, the establishing of the rate, etc.; and, in order to have the rule or course of proceeding uniform, each step taken must be uniform. The valuation must be uniform. The rate must be uniform. Thus uniformity in such a proceeding becomes equality; and there can be no uniform rule which is not at the same time an equal rule, operating alike upon all the taxable property throughout the territorial limits of the state, municipality, or local subdivision of the government, within and for which the tax is to be raised.” 9 Wis. 420, 421.

If the construction thus given to the clause of the constitution in question is now to prevail, if “the course or mode of proceeding in levying and laying taxes” must “in all cases be alike,” if the “several distinct steps” in such proceedings “must be uniform,” then I am unable to perceive upon what principle the validity of ch. 315, Laws of 1903, can be sustained, since it provides only “for the taxation of railroad companies,” with a different method of assessment and a different method of valuation and fixing the rate than of other property, and other differences unnecessary to mention. But, as'I.read tbe decisions of this court, such construction so announced in tbe Knowlton Gase and sanctioned in tbe Planh Road Gase was expressly departed from in tbe final adjudication in tbe Kheelmd Gaseand subsequently. Thus it was beld long ago tbat “tbe mode of levying, assessing, and collecting taxes is entirely subject to tbe discretion of tbe legislature, limited by tbe constitutional provision wbicb requires tbe rule of taxation to be uniform.’’ Smith v. Cleveland, 17 Wis. 556, 565. Chief Justice Dixow, speaking for tbe court, there said:

“Tbe machinery of taxation, tbe mode of levying, assessing, and collecting, is subject entirely to its discretion. Tbe liability to taxation and nonpayment of tbe taxes being admitted, tbe legislature may, as to all other things, declare what shall or shall not be essential to tbe validity of tbe pro: ceedings. Tbe same power which imposes a duty may dispense with its performance.”

So tbe court beld, in an opinion by tbe same chief justice, tbat “tbe legislature has power to prescribe tbe forms of tax proceedings, and in matters of form may declare what steps shall or shall not be essential to tbe validity of a tax sale or tax deed.” Smith v. Smith, 19 Wis. 615. But it is unnecessary to further cite authorities on tbat question, since it is expressly beld in tbe ad valorem case decided herewith tbat it “is within tbe legislative discretion to' place railway corporations in a class by themselves,” as is "done by tbe act in question. Not only tbat, but it is there expressly beld tbat “tbe classification of mortgage indebtedness is legitimate under tbe doctrine of classification” therein stated. So it is beld in tbat case tbat “tbe legislature may classify and subclassify property, to tbe extent of distinguishing differences as to a particular class or subclass, reasonably requiring special treatment to promote tbe constitutional requirement.’’ Tbe placing of railroad corporations- in a class by themselves for tbe purposes of taxation, was just as legitimate under tbe license system as under tbe ad valorem system. See Chicago & N. W. R. Co. v. State, post, p. 553, 108 N. W. 557.

I am unable to perceive any logical basis for tbe proposition now advanced that tbe exactions made by law of “four per centum,” or any other “per centum, of tbe gross earnings of all railroads,” were not taxes upon property witbin tbe meaning of sec. 1, art. VIII, of tbe constitution. There can be no question but that such earnings were property. This court has recently held that notes and mortgages — “things in action and evidences of debt” — were “property” witbin tbe meaning of that clause of tbe constitution, and hence were subject to taxation under that clause. Kingsley v. Merrill, 122 Wis. 185, 190, 194, 99 N. W. 1044. Since tbe gross earnings of every railroad must necessarily be property belonging to such corporation, tbe only remaining question for consideration is whether the exactions so made in lieu or consideration of such exemption from ordinary taxation were “taxes, . . . levied upon such property” witbin tbe meaning of that clause of tbe constitution. In determining that question it is immaterial whether there was a contractual relation between tbe state and tbe railroad companies or not. It is conceded in tbe opinion filed that they were “taxes in tbe just and proper sense of tbe term,” for tbe purposes of revenue; but it is said that they were not “taxes on property witbin the meaning of tbe constitution.” Since such exac-tions of tbe percentage of such gross earnings were “taxes in tbe just and proper sense of tbe term,” it is difficult to conceive why they were not taxes on property witbin tbe meaning of tbe constitution. Certainly no marked distinction has heretofore been pointed out. Such distinction cannot be satisfactorily made upon tbe theory 'of inclusion and exclusion. Tbe necessity for having some fixed standard to determine such differences seems to have been realized, and so in tbe ad valorem case, herewith decided, and above cited (post, p. 553), it is, as I -understand, in effect beld that “the rule of uniformity” prescribed by the constitution only applies to '“direct taxation on property,” and. that as to such property 'the “legislature may classify and subclassify property.” The ■difficulty about such conclusion is that the constitution does not so read. It simply declares that “taxes shall be levied upon such property as the legislature shall prescribe” by a uniform rule. The language is sweeping and is broad enough to cover all “taxes in the just and proper sense of the term.” It is not confined to “direct taxation” nor direct taxes. Even if it were, the proposition advanced could not, in my judgment, be maintained, for the simple reason that a tax upon the “gross earnings” of a railroad company is just as much a direct tax on that portion of the company’s property as though it had been upon the roadbed, or rolling stock, or any personal property. Since a tax on “things in action and evidences of debt” has been held to be a tax on property within the meaning of the constitution (Kingsley v. Merrill, 122 Wis. 185, 99 N. W. 1044), it would seem to follow that a tax on gross earnings of railroad companies is a tax on property within the meaning of the same clause of the constitution. This must be so, unless such “gross earnings” are not to be regarded as property, since the mode of making such exactions for the purposes of revenue is purely a matter of legislative -discretion.

But we are not without direct authority on the question. Under the constitution of the United States “direct taxes” are required to “be apportioned among the several states, .. . . according to their respective numbers,” or inhabitants. Sec. 2, art. I, Const, of U. S. But indirect taxes, such as “duties, imposts, and excises,” are required to “be uniform throughout the United States.” Sec. 8, art. I, Const, of U. S. Under such provisions it was always conceded that taxes on land were “direct taxes.” After elaborate arguments • and careful deliberation it was held, under such constitutional provisions, by the supreme court of the United States, that “a tax on the rents or income of real estate” was a “direct tax,” and, not having been so apportioned, was void. Pollock v. Farmers’ L. & T. Co. 157 U. S. 429, 15 Sup. Ct. 673. Such rulings were affirmed on re-argument. 158 U. S. 601, 15 Sup. Ct. 912. The court in the same case then decided that “taxes on personal property or the income of personal property” were “direct taxes.” Id. In a later case the same court held that “a stamp tax on a foreign bill of lading is, in substance and effect, equivalent to a tax on the articles included in that bill of lading, and therefore is a tax or duty on exports.” Fairbank v. U. S. 181 U. S. 283, 21 Sup. Ct. 648. Since taxes on the income of real and personal property are direct taxes on property, there would seem to be no escape from the conclusion that taxes on the income of railway companies, consisting of gross earnings, are also direct taxes.

It is sought to bring the case within the rule applicable to “duties, imposts, and excises,” or mere privileges, and so cases are cited where foreign insurance companies or other foreign corporations have been licensed to do business in the state. Numerous decisions of that kind have been made by that court, and no one disputes the proposition. The case apparently most relied upon is Maine v. Grand Trunk R. Co. 142 U. S. 217, 12 Sup. Ct. 121. The defendant was a corporation created under the laws of Canada, having its principal place of business at Montreal. The action was brought by the state to recover “an excise tax upon the defendant . . . for the privilege of exercising its franchises within the state,” under a statute which declared:

“Sec. 1. The buildings of every railroad corporation or association whether within or without the located right of way, and its lands and fixtures outside of its located right of way, shall be subject to taxation by the several cities and towns in which such buildings, land and fixtures may be situated, as other property is taxed therein.

“Sea 2. Every corporation, person or association, operating any railroad in tbis state, shall pay to tbe state treasurer, for tbe use of tbe state, an annual excise tax for tbe privilege ■of exercising its franchises in tbis state, wbicb, with the tax provided for in section one, shall be in lieu of all taxes upon such railroad, its property and stock.”

It will be observed that such "excise tax'” was in addition to tbe taxes upon tbe property of the corporation in tbe towns ■and cities where it was located. Tbe question for determination was whether such state statute was a regulation of interstate and foreign commerce. Tbe trial court held that it was, and adjudged accordingly. That judgment was reversed on tbe ground that such statute was not a regulation of such commerce, but, in tbe language of tbe act, “an annual excise tax.” Mr. Justice Fieiu>, speaking for tbe court, distinguished that case from an earlier case where^ tbe tax was “in terms upon tbe gross receipts of” tbe corporation. Phila. & S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118. Justices Bbadley, HablaN, Lamae, and Beoww dissented on tbe ground that tbe act was a regulation of interstate commerce. It bad long before been well settled by that court that tbe right of such Canada corporation to do business in the state of Maine depended solely upon tbe will of that state. Hooper v. California, 155 U. S. 648, 652, 15 Sup. Ct. 207, and numerous cases there cited. In tbis last volume that same court held that, without infringing tbe interstate commerce clause of tbe federal constitution, a state might impose taxes upon foreign corporations engaged in such commerce, “graduated according to tbe amount and value of tbe ■companies’ property measured by miles, and being in lieu of ■taxes directly levied on tbe property,” and that tbe same was ■“a tax wbicb” was “within tbe power of tbe state to impose.” Postal Tel. C. Co. v. Adams, 155 U. S. 688, 696-698, 15 Sup. Ct. 268. It was there said by tbe court that “doubtless no state could add to tbe taxation of property according to tbe rule of ordinary property taxation, tbe burden of a license or other tax on the privilege of using, constructing, or operating an instrumentality of interstate or international commerce or for the carrying on of such commerce; but the value of property results from the use to which it is put and varies with the profitableness of that use, and by whatever name the' exaction may be called, if it amounts to no more than the ordinary tax upon property or a just equivalent therefor, ascertained by reference thereto, it is not open to attack as-inconsistent with the constitution.” See, also, Atlantic & P. Tel. Co. v. Philadelphia, 190 U. S. 165, 23 Sup. Ct. 811. In a later case in that court, where the facts were similar to the case at bar, the local statute required the railway company to pay a “percentage on gross earnings as provided for therein,” in lieu of all other taxes; and the question was whether such statute was a regulation of interstate and foreign commerce, and it was held to be taxation of the lands of the company, through the payment of such percentage, and it was said in the unanimous opinion of the court:

“But there is great force in the claim that the act is not subject to the objections mentioned in” Fargo v. Michigan, 121 U. S. 230, 244, 7 Sup. Ct. 857; Philadelphia & S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, “and the-cases therein referred to. In those cases there was a distinct tax upon the gross earnings without reference to any other tax, and not in substitution or in lieu of another tax, while in this case the act plainly substitutes a different method of taxation upon the property of a railroad company. It is a tax upon the lands and all the other property of the company, but instead of placing a valuation upon the lands and other-property, and apportioning a certain amount upon such valuation directly, as was the old method, a new one is established of talcing a percentage upon the gross earnings as a fair substitute for the former taxes upon all the lands and property of the company, and when it is said, as it is in this act, that the tax collected by this method shall be in lieu of all other taxes whatever, it would seem that it might be claimed with .great plausibility that a tax levied under such circumstances and by such methods was not in reality a tax upon the gross-earnings, but was a tax upon the lands and other property of the company, and that the method adopted of arriving at the sum which the company should pay as taxes upon its property was by taking a percentage of its gross earnings.” McHenry v. Alford, 168 U. S. 651, 670, 671, 18 Sup. Ct. 242. See Mich. Cent. R. Co. v. Powers, 201 U. S. 245, 26 Sup. Ct. 459.

But it is unnecessary to multiply authorities. As indicated, the license system of taxing railways, so called, which was in force in this state during the fifty years immediafely preceding the present ad valorem system, included the exemption from taxation of “the track, right of way, depot grounds and buildings, machine shops, rolling stock, and all other property necessarily used in operating any railroad in this state, belonging to any railroad company/’ and the exaction, in lieu and consideration thereof, of a “per centum of the gross earnings” of all such railroads. Subd. 14, sec. 1038, R. S. 1878, and Stats. 1898, and secs. 1211-1214 of the same Statutes. No one would claim that any legislature would grant such exemption as an .'independent proposition, nor without exacting payment, for the. purposes of revenue, of an amount supposed to be equal to what would have been the taxes upon the property so exempted had the same been assessed in the ordinary way. This is apparent from the absence of such exemption in the ad valorem system (subd. 3, see. 2, ch. 315, Laws of 1903), and its presence in the license system. The license system, so called, was manifestly resorted to by reason of the seeming necessity of taxing the property of each railway company as a unit and the difficulty of so taxing such property, as experienced in the ad valorem case decided herewith (post, p. 553).-

I am willing to subscribe to the proposition that in enacting ch. 315, Laws of 1903, providing for the “taxation of railroad companies” by the ad valorem method, the legislature was under the limitations imposed by the uniformity clause of the constitution; but I am unwilling to subscribe to the proposition, now advanced, that in exacting the corresponding millions of money annually from the same companies under the license system, which so prevailed prior to that enactment, the legislature was under no limitation by reason of the uniformity clause of the constitution. The purpose of each of the two methods was to secure a corresponding amount of revenue for the use of the state. To hold that the enactment of the one method was subject to such constitutional limitation and that the enactment of the other was not is to hold that the legislature by the choice of methods may determine whether such constitutional restriction shall or shall not be operative. To so hold, in my judgment, is to place form above substance, and to deprive citizens and taxpayers of the protection heretofore supposed to have been secured by such constitutional restriction. If the legislature may rightfully exercise such unlimited power to make exactions from the income of railway companies, then I do not perceive why the legislature may not exercise unlimited power in making similar exactions from the income of other property by a similar method. Can it be that the legislature can exempt from taxation all property producing an income, and then in lieu of such exemption exercise unlimited power in exacting a-percentage of such income through the so-called license system?

This opinion is written in no spirit of controversy, but merely to relieve myself from responsibilities which otherwise I would necessarily share, not only in the decision of this case, but also in the decision of the case of Chicago & N. W. R. Co. v. State, post, p. 553, 108 N. W. 557, and Nunnemacher v. State, 129 Wis. -, both of which axe decided herewith.

Case Details

Case Name: State v. Chicago & Northwestern Railway Co.

Court Name: Wisconsin Supreme Court

Date Published: Jun 21, 1906

Citation: 128 Wis. 449

Court Abbreviation: Wis.