Attorney General v. Winnebago Lake & Fox River Plank Road Co.

By the Court, Paine, J. In the case of Knowlton vs. The Supervisors of Rock County, 9 Wis., 410, the majority of this court held, that an act providing for the taxation of property outside of the recorded plat, in the city of Janesville, at a less rate than that by which the property within the plat was taxed, was in violation of the provision of the constitution, that the rule of taxation shall be uniform. It has been supposed that that decision rendered questionable the validity of the statute now in force in respect to the taxation of rail and plank road companies; and this application has been made for the purpose of determining whether, in the opinion of the court, this statute is within the principle established in that case. An alternative writ of mandamus ' was issued for the .purpose of compelling the company to make the statement, and pay the tax provided for in sections 182 and 183, chap. 18, of the present Revised Statutes — 38 — The company, by its counsel, moved to quash the writ, and the only ground urged in support of the motion, was that these provisions are in violation of the constitutional rule of uniformity in taxation. It may be that it would be a sufficient reason for granting the motion, that sections 184-5-6 of the same chapter, provide other specific remedies for the collection of this tax. But as no such point was made, we shall not consider it, but will dispose of the motion upon the point presented in the.argument. It is claimed at the outset, that the question has already been decided by this court, in the case of the Milwaukee and Miss. R. R. Co. vs. The Supervisors of Waukesha, which was decided several years ago, but in which there never was any opinion written. The same position was taken in Knowlton vs. Supervisors of Rock Co.; and it was there intimated in the opinion of the Chief Justice, that under the peculiar circumstances of that decision, not knowing the precise ground upon which it rested, nor the reasons of the court, we could hardly feel bound by it as an authority. Its effect, however, was at that time avoided by the fact that, according to the best information we had of it, the court held that the imposition upon the railroad was not a tax, within the meaning of the constitution. The source of that information was a letter written by one of the judges to one of the counsel in the case, stating the points decided. And it was there said that the court held: 1. That the amount required to be paid by the railroad company was not a tax; and that if it was a tax, the constitutional requirement of uniformity was complied with, inasmuch as all railroads were taxed alike. Mr. Justice Cole, however, who was then on the bench, places his decision upon the last ground, and does not understand that the court relied very strongly upon the first. — 39 — Even with this uncertainty, if that decision had constituted such a rule of property, that a departure from it now would unsettle entirely rights and titles acquired in accordance with it, I should deem it my duty to follow it, as we have followed the prior decisions of this court in regard to the constitutionality of the mill dam act, even though utterly in conflict with my own views. But it is common for all courts to review their own decisions, and their right and duty to do so, are well stated by this court in Pratt vs. Brown, 3 Wis., 603, where after alluding to the importance of the rule stare decisis, it is said: “But, at the same time, we cannot be unmindful of the lessons furnished by our own consciousness, as well as by judicial history of the liability to error, and the advantages of review.” As a departure, therefore, from the decision in question, would only have the effect of subjecting all taxable property to a just equality in the burden, if the decision was subversive of that equality, in view of its peculiar circumstances, I deem it one eminently proper to be reconsidered. If then it is held to have decided, that the law taxing rail and plank road companies, is a compliance with the constitutional requirement of a uniform rule, it was in this respect overruled by the case of Knowlton vs. The Supervisors of Rock Co. I shall not attempt to go again over the ground there discussed. But as the point was again argued and insisted on by the attorney general in this case, I will allude briefly to some of the positions taken by him. It was claimed that the construction there given to the word uniform, gave it the same effect as though the word equal had also been used. He conceded that if the constitution had required the rule to be uniform and equal, that then the legislature could not discriminate between different classes of property, and tax them at different rates; but claimed that the word “ uniform” required equality, only in each class of property, but not as — 40 — between different classes. I can see no ground for such a distinction. .If a general rule applicable to all taxable property, is uniform, though taxing different classes at different rates, merely because each class is taxed at the same rate, then, by the same reasoning it would be equal, because each class would be equally taxed. It is very obvious that it would not be equal as between the different classes. But it is just as obvious that as between them it would not be uniform. The fallacy of the argument consists in taking the liberty of dividing the rule, when construing thé word uniform, and considering the manner of taxing each class as the entire rule, without doing so in respect to the word equal. But there is no more authority for doing so in the one case, than there would be in the other, and none in either. The rule of taxation is a general rule, and is applicable to all taxable property. “ Uniform” means, unvariable, resembling itself at all times, conforming to one rule or mode. It is very clear therefore that a rule taxing horses at one rate, cattle at another, and land at a third, would not be a uniform rule. The fact that all horses were taxed alike would not make it so, because the mode of taxing horses would be only a part of the rule. That part might be uniform with itself, but the moment a change was made to other property, there the rule changed, and the uniformity ceased. By any other construction there might be as many different modes and rates of taxation, as there may be classes of property, and yet the rule of taxation be uniform. A proposition which is a self-evident contradiction. The object of the constitution was to produce justice and equality in the burden of taxation, as between property taxable at all. The evil to be prevented was, discrimination in favor of one kind of property and against others. This evil experience had shown was likely to arise. It was common for the owners of particular kinds of property to combine to — 41 — obtain special privileges for tbeir class. It was not common for such discrimination to be made in favor of a part of a particular class against the rest of the same class. The construction I am contending against, would prevent only the latter kind of discrimination; which was so little likely to happen that it could scarcely be deemed to have been the evil aimed at by the constitution, while it would leave the other which was so much more likely to happen, and to be productive of much greater injustice, entirely unrestrained. Our construction, or rather, the plain language of the constitution without construction, secures as near as may be, justice and equality in the burdens of taxation. The other leaves room for the greatest injustice and inequality, and seems to consider the constitutional provision as designed only to secure a sort of ornamental uniformity in the parts of an unequal rale, without affording any substantial benefit or protection. The fact that the provision of the constitution of the United States requiring “duties, imposts, &c., to be uniform throughout the United States,” has been held to allow discrimination between different kinds of property, does not at all impair the force of our position. A provision requiring uniformity has in view some circumstance or quality with reference to which it is to be determined. If, color be the quality, several articles may be of a uniform color, though differing in other respects; and so of any other quality. The provision in the constitution of the United States was designed to secure uniformity as between the states, not as between different kinds of property. The language expressly indicates that intention. Judge Story in his commentaries, vol 2, p. 428, says the object was “ to cut off all undue preferences of one state over another in the regulation of subjects affecting their common interests.” Locality was the point as to which uniformity was required by this object, and uniformity in this respect was not inconsistent with discrimination — 42 — between different kinds of property. Bat the object of our constitution was to secure the same equality as between different kinds of taxable property, that the other designed to secure as between the states. And this can be attained only by a uniform rate. The same view of this provision is taken in the opinion of Justices Bartley and Ranney, in the case of The Exchange Bank of Columbia vs. Hines, 3 Ohio St. R., 1. But it is said that if the constitution is construed as designed to secure equality in the burden of taxation, then no property can be exempted. This would be so if it required equality in the burdens, as between all the property in the state. But this is not required. It is required only in respect to the taxable property. The rule of taxation extends to that only. The same provision says that “ taxes shall be levied on such property as the legislature shall prescribe.” And this necessarily implies that they may exempt from taxation such property as they see fit. It cannot be denied that under this power of exemption, unjust enactments in respect to taxation might be made. But those who framed the constitution did not see fit to prevent such evils by depriving the legislature of the power. But they did provide that whatever property was made taxable at all, should be taxed by a uniform rule, which was designed to secure equality in the burden as between the different kinds of taxable property, but of course, not as between property taxable, and that not taxable. The majority of the court adhere therefore, without qualification, to the rule as stated in Knowlton vs. The Supervisors of Rock County. The only remaining question is whether the imposition upon the plank road company is a tax within the meaning of the constitution. Upon this point the burden of proof would seem to rest upon those who maintain that it is not a tax. The law itself says it is a tax. It was first enacted in 1854, and constitutes chap. 84, General Laws of that year. — 43 — It is entitled, “An act taxing railroads and plank roads.” Still, if from its nature it is something essentially different from a tax, a mere verbal inaccuracy of the statute in calling that a tax which is not one, ought not to govern in its construction. I will examine, therefore, the several suggestions that were made for the purpose of distinguishing this from a tax. It was said: 1. That a tax implies an assessment upon a valuation, while this requires a specific sum without regard to valuation. It is true that an assessment on the valuation is the usual and general mode of imposing a tax. But it certainly is not essential, as in the absence of constitutional provisions, there may be capitation taxes, and specific taxation upon property. But although an assessment upon the valuation is the general mode of taxation in this state, and possibly the only mode by which the constitution can be complied with; yet if the legislature should attempt, in a particular case, to impose that which is essentially a tax, in a different mode, this difference in the mode would not prevent its being a tax, otherwise every specific departure from the general mode of taxation would furnish its own justification, and take itself out of the constitutional provision, on the ground that not being imposed as taxes generally are, it was not a tax. There is certainly no room for the pretence that this is a bonus for the granting of the charter, the practice of requiring which, seems to have prevailed in some states. It applies by its terms to the rail and plank road companies previously organized, as well as to those thereafter to be organized. It certainly could not be a bonus for the charters previously granted; and it is clear, that it was not designed as such with respect to subsequent ones. The distinction between such a bonus and tax, is well stated in the Mayor, &c. of Baltimore vs. The Baltimore and Ohio Railroad Co., 6 — 44 — 6 Gill., 291-2, which was cited on behalf of the state, hut which, we think, fully sustains the position that it is a tax. The bonus was there said to be the consideration required by the legislature, for the grant of the franchise; the tax something levied upon the franchise or its value, “ after its creation,” for the support of government. The amounts required by the act in question, are clearly of the latter, and not of the former character. Another distinction was that the bonus was “ a mere proposal or offer of a bargain or contract by the legislature, which might be accepted or rejected, at the discretion of those to whom the offer was made.” While the tax was absolute and imperative, leaving nothing to the discretion of the tax payer. Here, again, the burden imposed by the act in question, falls within the latter and not the former class, for it is required to be paid absolutely, and stringent remedies given for its enforcement. The only other position taken was that this should be regarded as a sum paid for a license. But we are wholly unable to see how this can be maintained. It does not purport to be a license, it is not classed among licenses, various kinds of which are provided for in the statutes. It does not perform the functions of a license. A license is an authority granted to do that which the licensee might not legally do without it. And although the payment of money is frequently required for the license, yet its primary object is usually that of a police regulation, and not directly to raise a revenue. Por this reason licensing has not been classed as an exercise of the taxing power. It is an exercise of the police power of the state, and is analogous to the requiring of a bonus for the granting of charters; the distinction between which and a tax, has been already alluded to. We have no idea that the provision of the constitution requiring the rule of taxation to be uniform, was designed to, or does impose any restriction on the police power of the — 45 — legislature in granting licenses, for any thing that may in its nature he the subject matter of a license. But we do not think they could license the owners of a particular class of property to he 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 the 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 all question. And we cannot but feel that to attempt to impute to it the character of a license, would be a mere strained evasion of the constitution.. It was urged that rail and plank roads are of public importance, and that the public interest might be prejudiced by subjecting them to taxation for all purposes in the various districts through which they run. There may be great force in these suggestions. But if so, the remedy will be for the legislature to exempt their property, or such parts of it as they may see fit, leaving the balance, if any, to be taxed by the uniform rule by which all other property is taxed. It is not for the courts to furnish the remedy by swerving from the true construction of the constitution. In connection with the prior decision of this court, wé were referred to the practical construction of the legislature, and the general acquiescence therein; and it was urged that it would be productive of great injustice to those whose capital had been invested in view of that construction, to change it now. We are not unmindful, as already stated, of the force — 46 — of such arguments with respect to any rule of property, a change of which might unsettle entire rights acquired under it; but we cannot admit that they apply with equal force here. On the contrary, the only rpsult of our decision will he to prevent any class of property, which may have sought to obtain exclusive privileges for itself, from succeding in that attempt, and subjecting it to its equal share of the public burdens; a result as compatible with our sense of justice, as we believe it to be, with the obvious intention of the constitution. The motion to quash is sustained.