Prescott journal. [volume] (Prescott, Wis.) 1861-1871, 1862-06-11
Important Decision in the SUI
Dreme (,Ourt-The Taxes OF
Past Years Decided 10 be Lee
OPINION BY CHIEF JUSTICE DIXON.

GFINION By CHIEF JCoi
James Kee.and, Appellant, against The City
of Milwaukee, Respondent.
thinks rehearing must be bad IN this
case. AS to rail and plank road proper
ty, ! am almost and cannot say but
fully, prepared to return to The rule OF
taxation said to have been established by
this court in 1856. l am in great doubt
and perplexity upon the subject. MY
views Of the consultation remain unchang-
ed. l never had and never can have any
doubt about that. | wish | could satisfy
myself as well upon every question upon
which it becomes my duty to give my
opinion. As an original proposition, L
should say without hesitation, that we
must abide by the constitution as it is;
that if it is to be modified it must be done
by tho people. Neither the legislature
nor the court have any power over 1t,
either to change or dispense with its pro-
visions.
But the question is not new. 1t was
formerly before this court, and we are
told decided differently-that the law
taxing rail and plank roads was no in
tringement of the constitution. say,
we are told this, because we have no au-
thentic information to that effect. The
decision comes down to us by tradition.
No opinion was written, and no state
ment of the points resolved by the judges
placed upon the files of this court. And
this, without intending to reflect on the
official conduct Of my predecessors, for
whom have the highest respect 1 must
cay, was, in my judgment, the first great
mistake. The next may be, that we de-
parted from the decision, notwithstanding
the law in that respect was not observed.
A question of such magnitude should not
have been left in that way, and | have
sometimes felt that we ought not to be
bound by the adjudication as precedent.
If the court had performed its whole
duty, written an opinion, or filed notes
of the points decided, for one should
never have decided differently. But it is
said that this should make no difference
that the consequence Of overriding the
decision at this time are as disastrous as
il either or both of these things had been
done--that it was generally understood
and acquesced in as final a settlement of
the question, and the legislature and all
the financial affairs of the state have been
regulated accordingly.
1t cannot be denied, but this is so, and
then the doctrine that we must stand by
decided cases and not disturb settled
points, applies with peculiar and almost
irresistible force. 1t is urged upon this
motion, and was in an oral argument re-
Gently made in another cause, presenting
the same question, The argument is in
this respect new, for though it has occur
red to us, it has not been before urged by
counsel in the strong light in which it
now appears. The interests involved are
immense, and the consequences Of adher-
ing to our late decision, beyond calcula-
lation. The taxes for a series of years,
in a great state like this, cannot be an
nuled and every proceeding connected
with and depending upon them overturn-
ed, without a shock must be felt by every
property owner and citizen of the state.
The government itself must suffer great
detriment aud loss, and not only that,
but all the counties aud many of the
towns, to an extent amounting almost to
complete and financial ruin. Estates and
titles acquired, and investments made on
the faith of decision of tue highest court
of the state, will be swept away, and
public confidence destroyed.
When the embarrassment of the gov
ernment will cease, no one can tell.
Years will pass away, and thousands up
on thousands will be expended in litea-
ton before the evils of such a sudden
revolution can be fully known and APP
preciated. But this is not all. do not
see how the errors of the past can be
corrected, except by the levy of new tax
TO make up all former deficiencies. l
have tried to persuade myself that re-
assessment and relevy of the taxes for
those years was practicable, but | am
satisfied it is not. The obstacles in the
way of accomplishing such scheme, are
SO numerous, and the injustice which
will be wrought in many cases SO great,
as in my judgment to preclude all posi-
biIity of its being done. We are then
brought to this-the taxpayers of to day
must come forward and pay into the
public treasures, state and county, and in
many cases, city and town, the unpaid
taxes for the past seven years, with the
fees, charges and interest. This cannot
be done. The people cannot discharge
such an enormous burden in any one
year. It's collection would be impossible.
1t might be done in three, four, or more
years, but not in shorter time. Is this
court authorized in view of these facts
can we consistently with duty intiict such
burden upon the state? | think not.
1t seems to me, that as to the particular
species of property in question before the
court in 1855, must return to the rule
then established.
AS to the past it will be seen that the
mothod which | have suggested for sup
plying its defects, and can see no other,
carries us farther and farther from the
rule of equality established by the con
stitution, and for which have struggled
and which | am still persuaded should be
pursued by the legislature. 1t is better
that those evils and INEQUALITIES should