#### Board of Trustees of Lawrence University, Appellant, vs. Outagamie County, Respondent.

*May 16*

June *4, 1912.*

*Constitutional law: Statutes: Taxation: Powers of legislature: Uniformity in rule: Exemptions: Classification: Practical construction.*

1. A law ought not to he declared unconstitutional unless its repugnance to the constitution is clear and beyond reasonable doubt, and the court should point out the particular part of the constitution which is violated.

2. Unless restrained by constitutional provisions, the state legislature has full power to exempt any person or corporation or *245class of property from taxation according to its views of public policy or expediency.

3. Under sec. 1, art. VIII, Const., providing “that the rule of taxation shall be uniform,” statutory exemption from taxation must be based upon a legal classification.

4. The rule of uniformity does not relate alone to the rate or percentage of taxation; and it may be as effectively abrogated by-arbitrary exemption from taxation as by arbitrary impositions of unequal amount.

5. The rule of uniformity is violated by a statute giving an arbitrary exemption greater than is given to other persons of the same class owning property of the same general description.

6. The legislature having, hy sec. 1038, Stats., created a class consisting of chartered colleges or universities and prescribed exemptions for that class, a subsequent statute (Laws of 1901, ch. 116) giving to one member of that class by name an additional exemption based on no distinctive feature of the person receiving it or the property exempted, was invalid.

7. The rule of practical construction — that the uninterrupted practice of the government prevailing through a long series of years and the acquiescence of all its departments settle a constitutional interpretation in accordance with such long continued practice — has no application where there has been no such acquiescence on the part of the judicial department, nor where in the application of the constitutional provision in question there can be no doubt, ambiguity, or uncertainty.

Appeal from a judgment of tbe circuit court for Outa-gamie county: Joi-iN GoodlaNd, Circuit Judge.

*Affirmed.*

Tbe appeal is from a judgment dismissing tbe plaintiff’s complaint with costs.

Eor tbe appellant tbe cause was submitted on tbe brief of *Nash & Nash.*

Eor tbe respondent there was a brief by *Francis J. Rooney*and *H. G.*Sloan, and oral argument by *Mr. Rooney.*

TiaeliN, J.

Tbe plaintiff is an educational corporation created by tbe territorial legislature of Wisconsin in tbe year 184J. By cb. 116, Laws of 1901, tbe plaintiff’s charter was amended in several respects, and by sec. 8 of this act its board *246of trustees was authorized to “bold free of taxation any lands or other property acquired by donation, bequest, or purchase and held expressly for educational purposes, and for the endowment of the institution.” At the time of the enactment of the 'statute last mentioned there existed and was in force in this state sec. 1038, Stats. (1898), which related to property exempt from taxation, and among other things provided the following:

> “Personal property owned by any religious, scientific, literary or benevolent association, used exclusively for the purposes of such association, and the real property, if not leased or not otherwise used for pecuniary profit, necessary for the location and convenience of the buildings of such association and embracing the same, not exceeding ten acres; and the lands reserved for grounds of a chartered college or university, not exceeding forty acres.”

An incorporated school is a scientific or a literary association within the meaning of this statute. *St. John's M. Academy v. Edwards,*143 Wis. 551, 128 N. W. 113.

Notwithstanding the exemption provided by said ch. 116 and claiming that that part of the statute was unconstitutional, the taxing officers in 1908 assessed certain city real estate of the plaintiff for general taxes. The plaintiff paid these taxes under protest and brought this action in the regular way by appeal from the county board of supervisors to recover the sum so paid. The controlling question in the case is whether or not that part of the act of 1901 above quoted is valid and constitutional.

It is conceded that a law ought not to be declared unconstitutional unless its repugnance to the constitution is clear and beyond reasonable doubt, and the court should be able to point out the particular part’ of the constitution which is violated. It is further conceded that, unless restrained by constitutional provisions, the state legislature has full power to exempt any person or corporation or class of property from taxation according to its views of public policy or expediency. *247Cooley, Const. Lim. (3d ed.) 127; *Wis. Cent. R. Co. v. Taylor Co.*52 Wis. 37, 8 N. W. 833.

Sec. 1 of art. VIII of the state constitution reads: “The rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe.” This section has been the subject of much litigation and much discussion in this court. In *Black v. State,*113 Wis. 205, 89 N. W. 522, this court was confronted with a statute which imposed an inheritance tax upon estates of the value of $10,000 or upwards. Estates below this value were exempt. A fair summary of one of the points decided in that case may be found in the third paragraph of the syllabus, as follows:

> “Under sec. 1, art. VIII, Const., providing that the rule of taxation shall be uniform; and under the equality in the protection of the laws guaranteed by sec. 1, art. I, Const., and the XIVth amendment to the federal constitution, a classification of persons or property liable to or exempt from taxation does not violate the required rule of uniformity and equality, provided such classification be founded on real differences, affording rational grounds of distinction, and the exemption be reasonable in amount.”

The decision, it will be observed, does not put the invalidity of the'statute solely or squarely upon its conflict with sec. 1, art. VIII, Const., but recognizes such conflict and finds the statute avoided by this and other constitutional provisions.

In *Battles v. Doll,*113 Wis. 357, 89 N. W. 187, a statute exempting villages from certain taxes was before this court 'for construction, and the court said among other things :

> “This exemption has a just and equitable basis to rest upon, and will be sustained, unless the class of cities and villages 'to which it is made to apply is such as cannot be justified under a proper construction of the constitution. Erom the very nature of things, any classification made must, to a greater or less extent, be arbitrary. The grounds upon which such classification must' rest were stated in *Johnson v. Mil**248*waukee,*88 Wis. 383, 60 N. W. 270, and reaffirmed in *Boyd v. Milwaukee,*92 Wis. 456, 66 N. W. 603, and *Adams v. Beloit,*105 Wis. 363, 81 N. W. 869. We need not repeat wbat was said in those cases. The general doctrine is that the classification must be appropriate, and not artificial.”

These and other observations in that opinion plainly indicate that this court was then of the opinion that classification was essential to the validity of exemptions under some circumstances.

In *State v. Whitcom,*122 Wis. 110, 99 N. W. 468, it was decided that exemptions from the provisions of a law requiring peddlers to obtain a tax license must be based on some legitimate classification germane to the purpose of the law or else the law is invalid. This because it denied the equal protection of the laws. Whether it was invalid under sec. 1, art. VIII, was mooted but not decided. Legal classification was held to be a requisite, but the statute failed because of its conflict with other provisions of the constitution. It is said, however, that the question whether or not such unclassified and arbitrary exemptions conflicted with sec. 1 of art. VIII of the state constitution was one not yet authoritatively decided.

In *Chicago & N. W. R. Co. v. State,*128 Wis. 553, 642, 643, 108 N. W. 557, the court said:

> “Under our constitution, it must be remembered, there is the amplest power on the part of the legislature to exempt an entire class of property from taxation, and to make such class very narrow, even excluding from the benefits accorded to the members thereof those owning property of the same general class, so long as the character of that owned by those of the subclass is so far different from that owned by others, as, within the boundaries of reason at least, to suggest necessity or propriety, having regard to the public good and the constitutional object to be attained, and limitations in respect thereto, of substantially different legislative treatment'. Eew cases that can be found have gone further on that line than *Wis. Cent. R. Co. v. Taylor Co.*52 Wis. 37, 8 N. W. 833. *249There, as we have seen, a very small subclass of real estate, a class so small as to be confined to one owner, was deemed sufficiently different from realty generally to warrant the legislature in exempting it from taxation. It is not likely, as we have before indicated, that this court will soon go further on that line than it did in that case.”

Here we have, I think, an express and authoritative recognition of the necessity for classification in making exemptions.

In *State ex rel. Sanderson v. Mann,*76 Wis. 469, 45 N. W. 526, 46 N. W. 51, we find Mr. Justice Cassoday, who wrote the majority opinion in *Wis. Cent. R. Co. v. Taylor Co.*52 Wis. *37,*8 N. W. 833, earnestly, almost vigorously, protesting against any interpretation of the opinion in the last mentioned case which would, authorize exemption except upon some principle of classification or which would authorize arbitrary exemptions. This, as we understand it, expressly recognizes that classification is necessary, although the classification is a very liberal one.

When we are presented with a case in which the exemption is arbitrary and in which other persons of the same class owning property of the same general description are awarded exemptions of a lesser amount, the situation is one in which the rule of uniformity is violated. It is impossible under the most liberal rule of classification to sustain it as a classification, because the class is already made and the situation is one in which a different amount of exemptions is allowed to one person of the class than to others of the same .class. For example: in subd. 11, sec. 1038, there is an exemption from taxation o'f wearing apparel, family portraits, etc., not exceeding in value $200, and kitchen and other household furniture not exceeding in value $200. Here the class is determined by description of the property exempted. The rule of uniformity would be destroyed by an additional provision that certain persons of the same class should have $800 ex-*250eruptions of this class of property. So where the class consists of the property of certain described persons as religious, scientific, literary, or benevolent associations except one or more, naming them. The legislature had, by sec. 1038, for the purpose of providing exemptions, created a class consisting of chartered colleges or universities and prescribed the exemptions for that class. Aside from the act of 1901 the plaintiff is entitled to all the exemptions of that class found in sec. 1038. Plaintiff unquestionably belongs to the class entitled to these exemptions. There is, as we view it, by the act of 1901 conferred upon the plaintiff arbitrarily and not as a class an additional exemption from taxation, based on no distinctive feature of the person receiving the exemption or the property exempted. It is very plain that the rule of uniformity mentioned in the constitution does not relate alone to the rate or percentage of taxation. It is equally obvious that the rule of uniformity may be as effectually abrogated by arbitrary exemptions from taxation as by arbitrary impositions of unequal amount. The words of the constitution, while recognizing the power of the legislature to designate the property upon which taxes shall be laid, limit this power in some degree by the requirement that the rule of taxation shall be uniform. The section of the constitution mentioned must stand in its full integrity, and the designation of property to be taxed is to be exercised in obedience to the command that the rule of taxation shall be uniform. The authorities here-inbefore cited sufficiently show that this court has endeavored in the past to adhere to this construction of the statute, recognizing, however, in the legislature a broader power of classification for the purpose of designating what property shall be taxed than is ordinarily possessed in relation to other subjects requiring classification.

The appellant cites numerous instances from 1855 to 1911 in which the legislature of Wisconsin has by private and local act or general statute exempted from taxation certain de*251scribed property of a designated corporation or association. It is tbence argued tbat tbe Wisconsin legislature bas from a very early day placed sucb construction upon sec. 1 of art. VIII of tbe state constitution as to permit it to exercise tbis power notwithstanding tbat constitutional provision. Tbe case of *Dean v. Borchsenius,*30 Wis. 236,- and other like cases are invoked in support of tbe rule tbat tbe uninterrupted practice of the government prevailing through a long series of years and tbe acquiescence of all its departments settle a constitutional interpretation in accordance with sucb long continued practice. Tbe principle, which we recognize, is not, however, controlling in the instant case (1) because, as it appears from tbe citations given, there was no sucb acquiescence on the part of tbe judicial department of tbe state; (2) few of tbe instances brought forward support tbe conclusion. Tbe list starts out with tbe private and local law of 1855 (cb. 82) incorporating tbe Hesperian Society of tbe University of Wisconsin and exempting from taxation its personal property and tbe real estate actually occupied by it for the purposes for which it was incorporated. If there were no other members of tbat class, or if property used for tbe purposes of tbe Hesperian Society constituted a class; or, in other words, was unique and distinct in its uses or purposes from any other property in tbe state of Wisconsin, tbe act would be of undoubted validity and no precedent for tbe interpretation sought to be placed by appellant upon tbe section of tbe constitution in question. Ob. 104 of tbe Private and Local Laws of 1855, which incorporates tbe 'Columbus Collegiate Institute and exempts from taxation its library, apparatus, cabinet, and lands not exceeding ten acres, is next cited. Tbis is not materially different from subd. 3 of sec. 1038, Stats. (1898), and is not entitled to tbe interpretive weight given it by tbe appellant. Tbe same is true of cb. 516, P. & L. Laws of 1856; cb. 282, P. & L. Laws of 1867; cb. 334, P. & L. Laws of 1863; cb. 382, P. & L. Laws of *2521870, etc. Tbe considerations mentioned with reference to cb. 82, P. & L. Laws of 1855, also apply to tbe instances covered by cb. 203, Laws of 1861; cb. 441, Laws of 1865; cb. 68, Laws of 1866; cb. 59, P. & L. Laws of 1869; and cb. 324, P. & L. Laws of 1870. In tbe large list of acts mentioned there are instances in wbicb tbe exemption is arbitrary. But, as we bave seen, these instances occurred in tbe legislative branch of tbe government', while this court has been declaring tbe opposite rule. Many of tbe acts mentioned were passed at a time when tbe corporations or associations whose property was exempted were tbe first or only one of that kind existing in tbe state, and before tbe state legislature bad by general act classified exemptions from taxation so as to bring such corporation or association into a class. Those instances cited wbicb show a clear violation on tbe part of tbe legislature of sec. 1 of art. VIII of tbe state constitution, going to destroy tbe requirement of uniformity by arbitrary exemptions, prove too much.

“The rule, that practical construction of a law will be regarded by tbe court as controlling after long acquiescence, is invoked. That rule is familiar, and that it may apply where a constitutional question is involved. *Dean v. Borchsenius,*30 Wis. 236. But it has no application to a legislative enactment wbicb, in neither its literal sense nor its application to tbe subject it affects, is ambiguous. In such a case there is no room for tbe operation of tbe rule of practical construction, or any other. The act must be taken to mean what its language obviously indicates, regardless of tbe length of time that a contrary view has obtained. *Travelers’ Ins. Co. v.*Fricke, 94 Wis. 258, 265, 68 N. W. 958.” *Milwaukee Co. v. Isenring,*109 Wis. 9, 27, 85 N. W. 131.

Turning to tbe case last mentioned in tbe above quotation we find it there stated:

> “The doctrine of practical construction of a doubtful statute is well understood, and it has been recognized and acted upon by this court. *Scanlan v. Childs,*33 Wis. 663; *State ex**253*rel. Hudd v. Timme,*54 Wis. 318, 11 N. W. 785. It is an absolute requisite, however, in the application of the doctrine, that the law so construed must be doubtful, ambiguous, or uncertain. It can have no force against plain language. £A customary violation of the plain language of the law gives no authority for continuing such violation.’ *State ex rel. Raymer v. Cunningham,*82 Wis. 39, 50, 51 N. W. 1133; Sutherland, Stat. Const. § 308; *State ex rel. Weiss v. District Board,*76 Wis. 177, 44 N. W. 967.”

> “Acquiescence for no length of time can legalize a dear usurpation of power, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals to enforce it.” Cooley, Const. Lim. (7th ed.) ch. 4, pp. 106, 107. '

In the application of this section of the constitution to some cases there may arise doubt or ambiguity. But I think not with reference to the case Rere before the court, where at and prior to the passage of the exemption law the class to which the corporation belongs and in which it is included is fixed by the legislature and provided with a definite exemption of property from taxation. The new statute giving this particular corporation *eo nomine*a further and additional exemption of the same general class of property plainly contravenes the rule of uniformity of taxation required by the, constitution, and is for that reason invalid. It follows that the judgment appealed from must be affirmed.

*By tl\e Court.*— Judgment affirmed.

Maeshall, J., took no part.