Commissioners of Ottawa Co. v. Nelson.

judgment, and it corresponds now with our best judgment. Counsel for defendant in error in this case ask us to reconsider that decision, and they present to us a very able and elaborate argument to convince us that we were wrong. But they have presented nothing new-nothing that we had not already carefully considered and held to be insufficient to invalidate the law. But it is not strange that counsel should wish to have the question reexamined and reconsidered. The question is a difficult one. The arguments on both sides are nearly equally balanced, and different minds might honestly come to different conclusions thereon. Even unprejudiced minds might reach different conclusions, while every prejudiced mind will undoubtedly reach a conclusion corresponding with its own prejudices, or its own interests. Every person whose interest is against the law will undoubtedly believe that the law is unconstitutional. But this is not all. The arguments against the constitutionality of the law lie principally upon the surface, and can easily be seen and comprehended, while the arguments in its favor lie further back and can only be seen or comprehended by greater labor and by severer mental effort. To say that all assessments and all taxes must be equal and uniform in order to be valid; that the tax in this case is not equal and uniform, and therefore that the tax in this case is void, is an argument so short, so simple, so logical, and so easy of comprehension, that all persons who cannot or will not push their inquiries into a broader field of investigation will gladly accept it as true, and think it conclusive. But this argument is not sound. The fault is in the major premise of the syllogism. All assessments and all taxes are not required to be equal and uniform. It is true, that a certain degree of equality and uniformity must prevail in all assessments, and in all taxes, or they will be void. But the broad proposition, that all assessments and all taxes must in all respects be equal and uniform, is not true, and in the nature of things it could scarcely in any case be made to be true. Counsel for defendant in error, all through their argument, seem to have mistaken the language of our Constitution. Our Constitution provides that "the legislature. shall provide for a uniform and equal rate of assessment and taxation." Const. of Kans., art. 11, § 1. It does not provide for a uniform or eqal rule of assessment or taxation. And yet counsel all through their argument continually speak of the "uniformity of the rule of assessment and taxation," instead of speaking in the

Commissioners of Ottawa Co. v. Nelson.

language of the Constitution of "a uniform and equal rate of assessment and taxation." They use the language of the Constitutions of Ohio, and Wisconsin, and California, and several other States, instead of using the language of our own Constitution. Now why should they do this, if they really believe that the language of our own Constitution is sufficient for their purpose? Neither does our Constitution in terms require that all property, except such as it itself exempts, shall be assessed or taxed; nor does it provide in terms that no exemption shall be allowed except such as it allows. On the contrary, it provides in terms that "personal property to the amount of at least two hundred dollars for each family, shall be exempt from taxation," and by this language unavoidably implies that more than two hundred dollars' worth of personal property may be exempted by statute. In this particular, as well as in the said "rate of taxation," our Constitution differs from those of many of the other States. These differences will be noted in the opin ion soon to be delivered in the case of Francis, State Treas'r, v. A. T. & S. F. Railroad Co. The full provision of our Constitution upon these subjects reads as follows:

"The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for State, county, 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 exempted from taxation." Const., art. 11, § 1.

Counsel for defendant in error refer us to the rule of taxation as enunciated in the case in 9 Wis. 440. Now on that page is found the brief of counsel for the plaintiff, in the case of Milwaukee, etc., R. R. Co. v. The County of Waukesha. Said counsel in that case was opposed to the law, and of course said it was invalid. The court however held it to be valid and constitu

tional. In the opinion the court say: "The imposition upon railroad property, by the act of 1854, does not violate that provision of the Constitution of Wisconsin which provides a uniform rule of taxation, provided like property pertaining to railroads, or all property of that class, is alike taxed, or alike exempt, as it appears to be." 9 Wis. 449. This case is reported in a note to the case of Knowlton v. Supervisors of Rock Co., 9 Wis. 410. The court does not, in either of these cases, decide that property other than that exempted by the Constitution may not also be exempted from tax

Commissioners of Ottawa Co. v. Nelson.

We

ation by statute. In the first case mentioned, the court decides as above stated; and in the other case, the court decides that a part of the property in any given district cannot be taxed "by a different rule from that by which other property (in the same district) is taxed," but that "all kinds of property must be taxed uniformly, or be absolutely exempt." Syllabus, page 411. See, also, in this connection, Ill. Cent. R. R. Co. v. McLean Co., 17 Ill. 291. Now, in the present case, the real estate of said Bennington township is all "taxed uniformly" to pay said indebtedness, and the personal property is all "absolutely exempt" from such taxation. Is not this in accordance with the said Wisconsin decisions? are also referred to a decision in California. But in California the Constitution requires that "all property in the State shall be taxed in proportion to its value," and "taxation shall be equal and uniform." We are also referred to decisions in Indiana. Now if we understand the following decisions in Indiana, property may be exempted from taxation by statute which is not so exempted by the Constitution: Bank v. City of New Albany, 11 Ind. 139, 142; Connersville v. Bank, 16 id. 105; King v. Madison, 17 id. 48. We do not take issue with any decision in any State referred to by counsel for plaintiffs below; and so far as the present case is concerned we might well admit that each of such decisions would be held to be good law in Kansas, even under our Constitution. The case before us is outside of all ordinary cases, and is simply analogous to the said Sedgwick county case reported in 16 Kans. 498.

As we have before stated, it is not necessary that all assessments and all taxes in Kansas should be equal and uniform in order to be valid. See Glasgow v. Rowse, 43 Mo. 480, and Ill. Cent. R. Co. v. McLean Co., 17 Ill. 291 et seq. And we suppose that no person who has been able to give the subject any careful consideration will so contend. First: The aggregate amount and rate of assessment and the aggregate amount and rate of taxation vary in almost every county, city, town, township and school district in this State. The aggregate rate in some places is as high as five per cent on the valuation of property, and in other places it is as low as one or two per cent. And yet the Constitution says that "the legislature shall provide for a uniform and equal rate of assessment and taxation." Now does this mean "a uniform and equal rate of assessment and taxation" throughout the State, and VOL. XXVII- 14

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for every part and portion of the State? And if not, why not? Can any one give any sufficient reason why not? Of course every one knows that the Constitution does not mean (although it may seem to say so) that the "rate of assessment and taxation" shall be so "uniform and equal" throughout the State that if the aggregate rate of taxation in any one school district or township in the State should be just two per cent on the valuation, that the aggregate rate of assessment and taxation in every other part and portion of the State should also be just two per cent. And yet, who can give an intelligent and logical reason why the Constitution does not mean this? There are reasons, and sufficient reasons, but they do not float upon the surface. And hence we would expect that strict constructionists and superficial reasoners would refuse to receive them, and would deny their validity, even when shown to them, unless they assent through fear of ridicule for adopting such an impracticable view of the Constitution. Upon this question, see Bright v. McCullough, 27 Ind. 223, 229 et seq. and cases there cited. We have shown one exception to the rule that all assessments and all taxes must be equal and uniform; and this one exception alone destroys the universality of the rule contended for by the defendants in error, and to this extent it weakens their argument based upon the universality of such rule. But there are several other exceptions, some of which we will mention.

It seems to be almost universally admitted that said constitutional provision, requiring that assessments and taxes should be at an equal and uniform rate, does not apply to such special assessments or special taxes (usually called "special taxes" in this State) as are imposed upon abutting lot-owners in cities, towns, or villages, for street improvements. It has always been so held in this State (Hines v. Leavenworth City, 3 Kans. 186, 197, and subsequent cases), and has generally been so held in other States under similar constitutional provisions. Now the special and local impositions are clearly assessments, and clearly taxes; but still it is almost universally admitted that they are not such assessments and such taxes as are contemplated by said constitutional provision. Now why are they not? Can any one tell? We do not propose in this opinion to give any answer.

Neither does said constitutional provision apply strictly to licensetaxes. Leav. City v. Booth, 15 Kans. 628, 635; Fretwell v. City of

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Troy, 18 id. 271. In the case of Leav. City v. Booth, first referred to, it is said that

"A proper license-tax is not a tax at all, within the meaning of the Constitution, or even in the ordinary signification of the word 'tax.' City of East St. Louis v. Wehrung, 46 Ill. 395; Addison v. Saulnier, 19 Cal. 83; Carter v. Dow, 16 Wis. 298; State v. Herod, 29 Iowa, 123, 125; Mitchell v. Williams, 27 Ind. 62. This is so even where the license-tax is much greater than the mere cost of issuing the license, and even where the surplus fund incidentally arising from the issuing of the license goes into the treasury to swell the general revenue fund. Charity Hospital v. Stickney, 2 La. Ann. 550; Tenney v. Lenz, 16 Wis. 566, 567; Chilvers v. The People, 11 Mich. 43; Ash v. The People, id. 347; Baker v. City of Cincinnati, 11 Ohio St. 534, 543, 544; Johnson v. Philadelphia, 60 Penn. St. 445, 450; Henry v. The State, 26 Ark. 523, 525; Orton v. Brown, 35 Miss. 426. And there are still other decisions, holding that the constitutional provisions with reference to taxation have no reference to the collection of license-taxes, among which are the following: Anderson v. Kerns Draining Co., 14 Ind. 201; Thomasson v. The State, 15 id. 449, 451; Bright v. McCullough, 27 id. 223, 232; The People v. Coleman, 4 Cal. 46."

Neither do we suppose that capitation taxes, or poll-taxes, or requirements to work on the roads, or to train in the militia, come within said constitutional provision, although evidently they are all taxes in one sense. Sawyer v. City of Alton, 4 Ill. 127, 130; Town of Pleasant v. Kost, 29 id. 490, 494.

But even those assessments and those taxes which do come within said constitutional provision are not required to be, and are not always in practice, made and levied by a "uniform rule." Railroad property is assessed in one manner, while other property is assessed in quite a different manner; and still all these assessments are held to be valid. Gulf R. R. Co. v. Morris, 7 Kans. 210, 220 et seq. Different officers may, and sometimes do, assess different pieces of property belonging to even the same individual. Id. 227, and Gen. Stat., p. 266, § 53; p. 1033, § 38, and p. 1041, § 65. Personal property is assessed and taxed by various rules. Some of it is assessed and taxed where the owner resides, without regard to where the property is situated. Some of it is assessed and taxed where the property is situated, without regard to where the owner resides. And some of it, to wit, bank stock, is assessed