The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1862-04-10
VERY IMPORTANT DECISION.
IN Supreme COurS


James Kneeand appellant, against the City OF Miwa
kee, and others Respondents.
In the case of the Attorney General VS., TT
Winnebago Lake and Fox River Plank Roa
CO., IL Wis 35, this court decided that II
law which attempted to make railroads an
plank roads taxable by different rule fro
that applicable to the general mass OF taxab
property, was unconstitutional. The questiO
is now made in this case, whether the omi
sions by the assessors of the city of Milwau
kee, to insert in the tax lists the large amount
Of railroad property there, in pursuance OF Sns
law, does not invalidate the taxes imp osed up
on other property. The effect Of somewhs
similar omission, was considered by the coul
in the case of Weeks VS.. the city of Mitwar
kee, 10 Wis, 242, where it was held that tn
commission of the tax list of large property o
great value, in pursuance of an ordinance G
| the common council which attempted to eX
empt it, did invalidate the general taxes IN tn
city upon other property. 10 considering thu
| question however, the general rule was state'
| to be that Omissions of this character, STis
/ ing from mistakes Of fact, erroneous eompu
tations, or errors ofjmdgmsnt on the part G
| those to whom the execution OF the taXln
laws is intrusted, do not necessarily VlIlate IN
whole tax" On the trial Of this ease 1t wa
proved by the assessors that they omitted
The railroad property, because they bebeVed ina
the law did not authorize them to insert IL
And il was enormously contended on tbs al
gumeat, shat inasmuch, therefore, as the Q
mission arose from mere error Of judgm en-
on the part of the assessors, it fell within IN
rule in st stated, and could not affect the valid
ity the taxes on other property
l have struggled to bring my mind to TIL
conclusion; for I have been DESTROYS, if l coul'
find any solid ground upon which to stand, tt
sustain the validity ofthese taxes But con
fess when the proposition was first stated, II
seemed to me that it was extending the rule al
luded to- much further than either reason Of
the authorities from which it was derived,c oulc
possibly be held to warrant. And although
have given to it since, the best rejection an
capable of bestowing, it has only conhrmec
my first impression. 1t seems to me very cleal
that the rule in question assumes, as its very
foundation, that The taxing officers are attempt
ing TO execute 4 valid rule of taxation. When
that is 90, COMMISSIONS arising from errors Of
Judgment that may vitiate the whole tax
even though important in their character. But
when the legislature prsscribes an uncoustitu-
tional rule of taxation, and the taxing officers
act according to that to say that because they
believed tito be valid it was; mere error Of
Judgment, andtherefore the tax should be held
legal, would seem to be giving to errors OF Judg'
ement agreater efficiency than they have ever
beensupposed to possess IL would legalize g
taxasssssed i'll pursuance of any illegal rule. SO
that no matter how grossly any law may Vlo-
late the constitutional rule of uniformity. tax
assessed according to it, would be valid legal
tax, provided the assessors believed the law to
be valid 1t seems unnecessary TO enter into
any further reasoning, to show that the doc
trine relied on, cannot possibly be carried to
such a length. And if this is so, it leaves the
question here presented similar TO that III the
Weeks case. There, property OF great value
was omitted IRON the list by the illegal dir
rectiGa Of the common couneil. Hare the same
thing WAS done by the unconstitutional, and
,herefore, illegal direction of the Legislature.
There was an equal want OF authority IN both
cases to make he omission; the result upon
the other tax payers was the same IN both
The result was to impose upon them, urJusiiy'
the burden which ought TO have been borne by
the property ommtted.
And that this must invaliddte the taxes
agains4 them, would seem TO follow necessarily.
if any barriers whatever are t. be maintained
against illegal taxation The strictness with
which courts have required, where lands have
been sold for taxes, that every rebnlsiie OF the
law, even IN many cases, as to the mlnutest
matters of form, must have been complied
with is familiar to ell. Can it be in view, OF
this doctrine, that such important matters oil
substance can be overlooked? Can II be that
il the Legislature should direct that one half OF
the taxable peoperty of the State Should pay a
specific sum, which was a very small part 81
its lust share. and that the remainder should
be imposed on the other half that such other
halt would be legally taxed? Canthe legisla-
ture say that the property Of persons belonging
TO certain religious sects or political parties
shall be taxed at one tenth the rate Of others
aud yet the tax assessed in pursuance Of such a
law be- sustained? Upon the same principle
By which this tax must be sustained, If al az
/ do not see why sucha result must not fol
low. But / thllk neithercan be sustained
without u total abandonmentot all prorectloI
against Illegal taxation.
Is there any good reason why this position
should be taken why the citizen should Dc
given over without remedy to whatever oppres
sionmay Ce inflicted under the name OF taxation
regardless OF the safeguards which the Consul
tuition attempted 10 throw around MN: or II
is obvious that those safeguards are OF ne aVai
| if a tax assessed in violation OF them is legal
The only reason Dy which such a position
could possibly be justified, arises from the con
SEQUENCES that may result from holding other
wise For taxes were assessed for severA
wears in these counties, where there was lall
road and plank road property, in pursuance o
this unconstitutional rule And 1t is sald ]
their entire taxes for those years are held IN
valid, it may produce great pubic lnconVen
I ienca This Is undoubtedly true And yet II
issobyious that if 8 Judge is to answer upon the
question Of their legality according to hlseon
yicton of the truth, arrived at by the principles
oflegai reasoning, be must answerltlh inc SAME
way whether the consequences be one thlnS OF
or1+har. If he would say it was illegal If it re-
10 district
ssv the same though it relates to so entTe
country II he would say it was illegal II 1t haC
occurred year he cannot say it would be lega
because it was continued during i've or SIX
wears. But if decisions are to be made accord
| ing TO the consequences that may result, thel
h be latter facts would justify change.
! | suppose il is undisputed that the theory
] judicial duty is that while a judge may Otter
/ VgA,y properIy consider the consequences of {
! narticuIar con struction, in order TO determine
! what was the intent and meaning OF the law
vet that when be has arrived at conYlcuoL
upon that point, he is bound to declare IL WIZ
out regard to the consequences or that oscl
sion. / have no doubt this rule is often viola
tee. though perhaps many times unconsclousiy
The temptation to violate it is often very great
The mind is apt to sink before the dlsastrou
results. and to take refuge III some plauslDl
pretext, which would otherwise have been con
sidered insufficient. And so common has bee
the habit of Judicial legislation that courts al
too ant to assume, and the profession too aI
to criticise them upon the assumption, tina
they have the power TO declarethe law as the
think it ought to be rather than as they thin
it is For my own part disclaim all such re
possibility If these taxes were assessed
violation of the Constitution, the court which Z
decides did net cause it, nor would 1t eaus
the inconveniencss that might result from Il
| should therefore feel bound to declare, Wlti
out hesitation, my opinion that the omission
of the railroad property in Milwaukee, lnvai
dased the taxes Of which the plaintiff con
plains, > ere it not for the TACT that the la" a.
tho;izing such omissions, had, previously to II
F assessment Of those taxes, been once declai
valid Uy this Court Of course while that d
cision was in force, it was the duty of taxin
oficsrs 10 recognize it as the law. Yet, it ha
ing been overruIed, if the decision oyerrulir
it is to be adhered to, | suppose its effect mu
be to invahdate those taxes shat were assesst
according to the former. For if we now no
! ! 7 o. Trla mi road