Indiana American. [volume] (Brookville, Ind.) 1865-1872, 1868-03-20
IfnMs OF suescmpfIoNf
TURNPIKE DECISION.

tHJ L<c0f 1Ue
am afraid that you and your clients
are, by this time, very much out Of patience
with me for having delayed so long the
return Of the papers in your Turnpike
cases. (Which you will find herewiih) and
the only excuses | have to offer is, that
after constant labor for four aud a half
months IN court. i could hardly get my
courage sufficietly aroused to attack so
Formidable pile Of papers, and that 1
have had some private affairs which re-
quired some attention-this latter not be-
ing very good reason why | should delay
discharging public duty. y -
.Thave had much doubt in my own
mind as to what ought to do in these
cases, so far as the constitutional ques-
lion is concerned. | know that it is re-
rarded as the true rule to be followed by
inferior courts not to hold a law to be un
constitutional whsre there is any doubt on
the subject. In other words, where the
unconstitutionality is not clear the Court
should sustain the act OF the Legislative
branch of the Government l may here
add that, were il not for the rulings of the
Supreme Court, especially in the case Of
Goodrich VS.. the Winchester &c. Pike
Company, Goth, Ind | should entertain
no doubt whatever as to the unconstitu-
tiouality Of the act in question, and should
pronounce it unconstitutional. without the
slightest hesitaney. But under the rulings
and intimations of the Supreme Court in
relation to taxes and assessments, cannot
feel that eau, with propriety, so hold;
still, while sustaining il, for the reasons
above stated, feel very much like giving
some of the reasons why feel that |
ought not to dc. so. At any rate, having
expressed above the opinion that il is not
unconstitutional, il W II do no harm at least,
if thus privately give my reasons for 80
believing.
IL seems TO be so conceded so far rs the
constitutional question il concerned, that
this law must be measured according TO
the standard OF tho following provisions Of
the Constitution, to-wit:
"SEc. /, Art. lO-The General Assem-
bly, shall provide by law for uniform
and equal rate Of osscsme'R and faratioa
aud shall prescribe such regulations as
shall secure n just valuation for taxation
oi all property both real aud persooal.'
SEC. u. Art. mo mans property
shall be taken without just compensation;
nor except in case Of the State without
such compensation irst assessed aud ten
dered."
Ii is manifest from an examination Of
the phraseology of the FIRST Of the proyi-
sions above quoted, that the words "Bssess-
mcnt" aud ''taxation' are not used as ex
pressive Of the sane thing. II is hardly
10 be supposed that convention convened
for the purpose of framing constitution
would be guilty Of such tantology as 10
use the words assessment aud taxation as
expressive OF taxes alone. But whether
this is so or not the whole Of the language
used Of these two terms something more
was intended than what is ordinarily un-
derstood by the use Of the word taxation" 4"
for the provision is that provision shall
be made for uniform aud equal rate of
assessment and torafioH; and shall pre-
scribe such regulations us shall secure just
valuation for faration, &c. La other
words this provision manifestly is that
fa1aton is 10 be equal and uniform, and
based upon "jast ualaatioa' Of property
taxed, while assessments are TO be equal
and uniform, valuation of the property
upon which the assessments are made, nor
indeed are they required TO be upon prop.
erty at all. III the word "assessment" Is
equivalent to the word taxation then any
assessment made would have to be upon a
just valuation of the properly, aud this law
would be in violation oil the provision OF
the constitution, for the reason that il
makes no provision for regulating the
assessment according to the value. But,
inasmuch as the provision is that taxation
is to be based upon rdluatioH, while assess.
menf is bot, il seems to me, clear that
"taxaton" means one thing, while "assess.
ment" means quite another. As above
remarked, IL this is to be regarded as a tar
il seems to me obvious that this law can
not be sustained for the reason that there
is not even pretense that the amount
proposed to be collected is based upon
any valuation whatever; and the question,
therefore, is, is it such an assessment as is
contemplated in this provision Of the
Constitution?
In this connection il is important to
know what was the subject under consid.
GRAFTON when this provision of the consti-
tuition was framed by the convention and
adopted by the people Of the State
In making and adopting the constitu-
ton, the purpose was to organize State
government, and provide the means by
which that government might be carried
on. 1t was for this alone that the con-
vention was called and the only subject
considered by that body was the formation
of an organic law upon which the people
might be governed.
1t was government alone that was in
contemplation. Now if this be true, let
US turn to the portion Of the constitution
under consideration. What was the sub
ject matter under consideration when this
was framed and adopted Ii was Finance
Finance of what? Certainly it must be
the finance appertaining to that which
was being created, viz: the State govern
ment. 1t was not the finance of private
individuals, nor Of private corporations
nor Of joint stock companies, nor Of be-
nevolent associations, but those finances
which we're applicable, and necessary to
the carrying on Of the government thus
created. That governments was not to be
necessarily an undivided whole, but
might properly be sabdyided as govern
ment as applicable to the State at large
10 counties. 70 townships, to municipal
corporations. such as cities aud towns
These sub districts n rennhli ecornor.tinu.