The Weekly Kansas chief. [volume] (Troy, Kan.) 1872-1918, 1873-04-10
OFFICE OF ATTORNEY GENERAL,
TOPEKA. March 81. 1874.

TOPEKA, March q, 1873.
d. ". WILDER, Esq, Auditor Of tie State Of
KaRsas-Dear Sir: l am in receipt of your note
Of the 18th inst, asking my opinion a. to the
coustitutiouality of an act "exempting mortga-
ges and other securities from taxation approved
March 5th, 1873.
Having carefully examined the matter, am
forced to the conclusion that the act in question
is in violation of section one of article eleven Of
the constitution, and therefore, unconstitutional
Section one Of the act reads a. follows: I" Sec
hoR l. That all notes, bonds, Judgments, and
evidences of debt secured by mortgage on real
estate, a. well as such mortgages, shall be exempt
from taxes and taxation"
The section of the constitution which this law,
i'm nv opinion, violates reads as follows: "Sec-
tos 1. The legislature shall provide for uni-
form and equal rate of assessment and taxation !;
but all property used exclusively for State, Coun-
ty, municipal, literary, educational, scientific,
Religious, benevolent and charitable purposes,
and personal property to the amount of at least
two hundred dollars for each family, shall be
exempt from taxation"
In number of states having . provision sim-
lar to the first clause Of the above in their const
tutions, tho courts have held that . Law exemp-
ting certain kinds of property from taxation was
not unconstitutional, basing their decisions upon
this theory: that the right to declare what 10
ssbjcct to taxation rests solely with tho legiela
ture, but that having fixed the objects of taxa
tion once, the constitutional provision requiring
uniformity in the assessment and taxation of
such property made it obligatory upon the Law.
makers to provide that all such property should
be assessed and taxed by uniform rule. In 9TH
or words, and to illustrate, if Legislature should
declare that all mortgages should be taxed, II
would not have the power to say that chattel
mortgages should be assessed at their full value
and mortgages on real estate at only oue-balf
their value.
do not believe this construction to he correct;
but whether il Is or not, the framers Of our con-
stitution evidently meant in the first clnnse Of
the section above quoted to prohibit the legisls-
turc from exempting any property from taxation
other than the classes mentioned In the last sub-
division Of the section. This il apparent frnm
the language Of the provision. Having declared
that the legislature should "provide for uni
form and equal rate of assessment and taxation"
they manifestly thought that, of ITSELF sueh pro-
vision would prohibit any exemption, and they
therefore add, bat all property used exclusively
for State" and other purposes therein mentioned,
"shall be exempted from taxation"
There is another reason, hswever, basel upon
. universally acknowledged rule Of construction
which, in my Judgment, conclusivey establishes
the unconstitutionalty Of this law, and that Ia
"that the express mention Of ono thing implies
the exclusion Of all others"-exPrDsio ssiss ct
excissio atteriss Apply this rule-and IL zap
plies rs forcibly," the supreme courta Of several
States say, 'tn written constitutions - to
statutes ITO this case and IL will At once be seen
that the makers Of our constitution mesnt, when
they exempted certsin kinds Of property from
taxation, to exclude al other kinds from such
exemption.
In conciusion, allow me to say that in all courts
statutes like the one in question, eIempting cer-
tain property from its due proportion Of the pub
lie burdens. are regarded with . jealous eye, and
arc always strictly construed.
Your, respectfully.
A.. L. WILLIAMS,
Attorney General.