The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1862-04-10
NO. A..

depends on the former coastFuctloi' a"
j. from these considerations the maxim stat
deciSis, derives its chief support
% In view of them it Was strongly urged b
d counsel in smother case now pending, whlc
e presents the same question, that we ought {
d review cur decision everything the former de
n eision of this 'coHrt, and retracing our steE
Q hold the law taxing railroads unconstitutional
n / confess have had great doubts. in view @
J. the possible results of consistent adherence
to our last decision, whether our duty does no
Q require us to take this course. l freely ADM
Z that all these results were not at that tlm
foreseen by me- The case in which our decision
t was made, was made up by the parties for I'M
t purpose of testing the question how far th'
: principles announced in the previous decision
3 of Knowlton VS.. Supervisors OF Rock county
would be applied to the validity OF the law
taxing rail and plank roads. A speedy decis
: ion was desired and made, in order that tht
3 legislature, then i'll session, might take suci
action as might be deemed necessary 1h'
former decision was relied or but the prlnclpa
objection urged against it, was that 1t would o.
violation Of faith towards those who had in
vested their capital in rail and plank roads. un'
: der the belief that they were to be taxed al
? provided in that law. No aluei u was made
to the possible effect OF q change, upon the val
idity Of the taxes of other property in those
counties where railroad property was located
Had the i,lvaidating Of all those taxes; beer
presented as ore of the probable results OF 4
change of decision, it would have added very
greatly to the force which l then believed the
} maxim stare deciSiS was entitled 20. Ana tho
I never could have felt the slightest doubt Of
the ineoyrectness CT the former decision, !
might have felt bound TO follow it.
And it is not yet too LATE to return TO it, ii
duty requires it to be done. have thought
much and anxiousy upon this point and have
come to the conclusion that the consequences
of going backward may, after all, be more dis
astrous than those of going forward The lat
tor may produce some Inconvenience, and
trouble in the readjustment of such taxes as
may be found invalid, during the few years
when the law of 1854 was acted on. But that
such reimbursement is practicable and within the
power Of the legislature. have no DOUBT. The
case of Seymour vi. The People 10th Cal, 1913
| is well cOnsdeFed case sustaining this power;
/ and the power is assumed to exist without
question in the opinion of j. Christianey, in
Woodbridge VS.. tue City Of Detroit, MICA,
| 3l1-3l2.
| But if we GO backward we must say that par
| ticuar classes of property may be taxed at less
rates than Others, And that the Legislature
may make whatever determinations they
| please in the rates of taxation, provided only
that each class is taxed alike. The evils and
| injustice to be spprehended from this construc-
ton were sufficiently pointed out 10 the former
! opinions upon this question. And our country
! is now passing tho an ordeal,i which doubt
not those evils would be cruelty illustrated I'M
der that construction, in responding to the i'm
mense amount of treasure demanded from the
! loyal States to sustain the governmental i'll its
moral struggle. The small property owners,
who constitute the great mass ct the people,
usually pay their taxes without question, and
! seldom N nhiDp Aha of procuring
any special privileges or exemptions. But cap
| ital always keen eyed and vigiant, always
equally ready to grasp at the profit and shrink
at the burden. often able to bring to bear pow
erfUl and dangerous combinations of influence
upon legislative bodies, will be sure to take sd-
vantage of q construction, and to SHIFT upon
others the burdens which itself ought 10 bear
True, such justice may be borne 70, one year
or even for many years without det clipping it's
fatal effects. Blu! rs the coral insec's. though
working almost impercepGbly, do in process Of
| time erect islands and continents in the seas,
so, by an opposite process, unjust taxation
with slow and teady destruction eventually
wastes the victims on whom it ia inflicted 1t
was TO guard against this, that our constitution
was framed as it is. And believing as | do
that a return to a construction which virtually
annuis its entire efficiency for that purpose,
would be more disastrous than any inconven-
fence that may rusult from enforcing the OBJ
vious meaning of the instrument, feel bound
for once to stand upon our last decision
Ii was argued by counsel in another case,
| that every tax assessed since the Law OF 1854,
was necessarily Illegal Itw said shat if
| that law was void as violation of the rule of
uniformity, the law taxing other property must
| be equally so. Because being but parts Of
one whole il one part violated tho rule OF uni
formity because il do not correspond with the
10Th gtnar at auusii liz IL hppADEe
it did not correspond with the one think
this argument would be correct il applied to a
law prescribing different modes Of taxstion, in
such language that if one mode was invalid it
would leave 10 uniform systcm applicable to al
taxable property. But where s,cb n system
would remain, think the argument is not cor
rect Let me illustrate it. Suppose A, and
G to represent the different kinds of taxable
property. II law says that A shall be taxed
al one rate, 3 at another and G, at a third. IL
is obvious that no valid tax could be assessed
under such laws If one part violated the rule
of uniformity so would each OF the others
But if the law was first enacted that all three
should be taxed alike. and then afterwards
another law should attempt to make an excsp-
I ton in regard to one, the exception being held
\ void would leave the PRIOR Uniform rule uR-
disturbed and consequently valid. This was
the case in respect to the law taxing railroads
not necessarily void for want Of any valid law
on the subject Although it was not to be
expected that the assessors would do so, after
the decision of this court to the CONTRARY, yet
acc ording to our last decision, they should
have taxed rail and plank road property under
the general tax law and had they done so,the
/ tax would have been legal Il is tho tact,
which is shown in this Gaze, that they made
their lists according to the unconstitutional
law. that renders it Illegal.
One other question has bean considered by
US in consulting upon these cases. In tho case
OF Warden vs. the Supervisors &e., and the
Il case Of Mittim0re W. the Supervisors &c. we
held that whers a . f. asked the aid Of Court
of Equity to restrain tax sale, and it appear
/ ed from its own showing that the tax was not
oppressive, but on the contrary was less than
he ought to pay; that court Of equity would
not aid him Tho point Is whether the same
doctrine can be applied to tbsse cages. Do
not see how it can for the reason that these
cases do not come within it. The plaintiff here
does not show that he is taxed less than he
, ought to be but more. He makes out clear pTi-
, ma facie case Of injury where he shows large
amount of properly which ought to have helped
! him pay the tax has been omitted entirely
. And the only way by which the effect Of TINS
t can be avoided, is to assume that the rail anC
plank roads paid their-tax according to the la"
y of 1854, and then assume that by such pay
ment they relieve other property Of an amour
. of state tax equal 60 the excess imposed upof
a it by sthe omission Of this kind ofproperty II
0 the tax list
e But do not SEQ how the court can possibly
make other Of these assumptions. we de
+ cided that the railroads were not bound to paJ
+ under the law OF 1854; how then can we as
+ sumo without proof, that they did, Bat II VI
i are to assume at all, suppose we should as
!, sumo as near to the truth as possible and II 81
e we would be bound to assume that even II tn
d abroad companies did pay according 70 tn"
, law. i was much le.s sum than w0uid nav
a heen their proportion Of the taxes according u
? the general law. In all clse' whore th
. amount which any tax payer ought to pay ma
Z Z been or may be ascertained BY any mean
j within his reach, / think 1t would De emlneh'i'
4 proper for court Of equity TO refuse 10 rei'e'
blm from an Illegal excess, until he would a