Kneeland v. City of Milwaukee , 15 Wis. 454 ( 1862 )

By the Court,

PAINE, J.

In the case of The Attorney General vs. The Winnebago Lake and Fox Fiver Flank Road Company, 11 Wis., 85, this court decided that tbe law which, afr-tempted to make railroads and plank roads taxable by a dif-x r» ferent rule from that applicable to the general mass of taxable property, was unconstitutional. The question is now made in this case, whether the omission by the assessors in the city of Milwaukee, to insert in the tax lists the large amounts of railroad property there, in pursuance of that law, does not invalidate the taxes imposed u¡oon other property. The effect of a somewhat similar omission was considered by the court in the case of Weeks vs. The City of Milwaukee, 10 Wis., 242, where it was held that the omission in the tax list of a large property of great value, in pursuance of an ordinance of the common council, which attempted to exempt it, did invalidate the general taxes in the city upon other property. In considering the question however, the general rule was stated to be, that “ omissions of this character, arising from mistakes of fact,’ erroneous computations, or errors of judgment on the part of those to whom the execution of the taxing laws is entrusted, do not necessarily vitiate the whole tax.” On the trial of this case it was proved by the assessors that they omitted the railroad property because they believed that the law did not authorize them to insert it. And it was strenuously contended on the argument, that inasmuch, therefore, as the omission arose from a mere error of judgment on the part of the assessors, it fell within the rule just stated, and could not affect the validity of the taxes on other property.

I have struggled hard to bring my mind to this conclusion ; for I have been desirous, if I could find any solid ground upon which to stand, to sustain the validity of these taxes. But I confess that when the proposition was first stated, it seemed to me that it was extending the rule referred to, much farther than either reason or the authorities from which it was derived could possibly be held to warrant. And although I have given to it since the best reflection I was capable of bestowing, it has only confirmed my first impression. It seems to me very clear that the rule in question assumes, as its foundation, that tbe taxing officers are attempting to execute a valid rule of taxation. When is so, omissions arising from errors of judgment may not vitiate tbe whole tax, even though important in their character. But when the legislature prescribes an unconstitutional rule of taxation, and the taxing officers act according to that, to say that because they believed it to be valid, it' was a mere error of judgment, and therefore the tax should be held legal, would seem to be giving to errors of judgment a greater efficacy than they have ever been supposed to possess. It would legalize a tax assessed in pursuance of an illegal rule. So that no matter how grossly any law might violate the constitutional rule of uniformity, a tax assessed according to it would be a valid, legal tax, provided the assessors believed the law to be valid. It seems unnecessary to enter iñto any further reasoning to show that the doctrine relied on cannot possibly be carried to such a length. And if this is so, it leaves the question here presented entirely similar to that in the Weeks case. There property of great value was omitted from the list by the illegal direction of the common council. Here the same thing was done by the unconstitutional, and therefore illegal, direction of the legislature. There was an equal want of authority in both cases to make the omission; the result upon the tax payers was the same in both. That result was, to impose upon them unjustly the burden which ought to have been borne by the property omitted. And that this must invalidate the taxes against them, would seem to follow necessarily, if any barriers whatever are to be maintained against illegal taxation. The strictness with which courts have required, where lands have been sold for taxes, that every requisite of the law, evpn, in many cases, as to the minutest matters of form, must have been complied with, is familiar to all. Can it be, in view of'this doctrine, that such important matters of substance can be overlooked ? Can it be that if the legislature should direct that one half of the taxable property of the state should pay a specific sum, which was a very small part of its just share, and that the remainder should be imposed on the other half, that such other half would be legally ^axec^ Can legis^ature say that the property of persons to certain religions sects or political parties, shall ¿axe(j one-tenth the rate of others, and yet the tax as-gessed upon the others in pursuance of such a law be sustained ? Upon the same principle by which this tax must be sustained, if at all, I do not see why such á result would not follow. But I think neither can be sustained without a total abandonment of all protection against illegal taxation.

Is there any good reason why this position should be taken — why the citizen should be given over, without remedy, to whatever oppression may be inflicted under the name of taxation, regardless of the safeguards which the constitution attempted to throw around him ? For it is obvious that those safeguards are of no avail, if a tax assessed in violation of them is legal. The only reason by which such a position could possibly be justified, arises from the consequences that may result from holding otherwise. For taxes were assessed for several years, in those counties where there was railroad and plank road property, in pursuance of this unconstitutional rule. And it is said if their entire taxes for those years are held invalid, it may produce great public inconvenience. This is undoubtedly true. And yet it is obvious that if a judge is to answer upon the question of their .legality, according to his conviction of the truth, arrived at by the principles of legal reasoning, he must answer it in the same way whether the consequences be one thing or another. If he would say it was illegal if it related only to a single school district, he must say the same though it relates to an entire county. If he would say it was illegal if it had occurred only in one year, he cannot say it would be legal because it was continued during five or six years. But if decisions are to be made according to the consequences that may result, then the latter facts would justify a change.

I suppose it is undisputed that the theory of judicial duty is, that while a judge may often, very properly, consider the consequences of a particular construction, in order to determine what was the intent and meaning of the law, yet that when he has arrived at a conviction upon that point, he is bound to declare it, without regard to tbe consequences of bis decision. I have no doubt this rule is often though perhaps many times unconsciously. The temptation to violate it is often very great. The mind is apt to shrink -iT- i , . before the supposed disastrous results, and to take refuge in some plausible pretext, which would otherwise have been considered insufficient And so common has been the habit of judicial legislation, that courts are too apt to assume, and the profession too apt to criticise them upon the assumption, that they have the power to declare the law as they think it ought to be, rather than as they think it is. For my own part, I disclaim all such responsibility. If these taxes were / assessed in violation of the constitution, the court which so/ decides did not cause it, nor would it cause the inconvenient ces that might result from it. I should therefore feel bound to declare, without hesitation, my opinion, that the omission of the railroad property in Milwaukee invalidated the taxes of which the plaintiff complains, were it not for the fact that the law authorizing such omission had, previously to the assessment of those taxes, been once declared valid by this court. Of course, while that decision was in force, it was the duty of taxing officers to recognize it as the law. Yet, it having been overruled, if the decision overruling it is to be adhered to, I suppose its effect must be to invalidate those taxes that were assessed according to the former. For if we now hold the law of 1854, taxing rail and plank roads, unconstitutional, we must hold that it was so from the time of its enactment. If we hold that a tax assessed according to it now is invalid, we must hold that every tax assessed according to it, since its passage, is equally invalid. And in that, I understand, consists the difference between a change of the decision of a court, and a change of the law by the legislature. The latter does not affect things happening before the change. But when a court changes its decision, it does so not because it has any power to change the law, but because the law was from the beginning different from what it had been held in the former decision. And this, of course, necessarily invalidates all things done under the former, the validity of which depends on the former construction. And ^ese considerations the maxim “ stare decisis” derives chief support.

yigw of them it was strongly urged by counsel in another case now pending, which presents this same question, . t i • , . that we ought to review our decision overruling the former decision of this court, and retracing our steps, hold the law taxing railroads to have been constitutional. 1 confess I have had great doubts, in view of the possible results of a consistent adherence to our last decision, whether our duty does not require us to take this course. I freely admit that all these results were not at that time foreseen by me. The case in. which our decision was made, was made up by the parties for the purpose of testing the question, how far the principle announced in the previous decision of Knowlton vs. Supervisors of Rock County, 9 Wis., 410, would be applied to the validity of the law taxing rail and plank roads. A speedy decision was desired and made, in order that the legislature, then in session, might take such action as might be deemed necessary. The former decision was relied on, but the principal objection urged against disturbing it was, that it would be a violation of faith towards those who had invested their capital in rail and plank roads, under the belief that they were to be taxed as provided in that law. No allusion was made to the possible effect of a change upon the validity of the taxes upon other property in thos'e counties where railroad property* was located. Had the invalidating of all those taxes been presented as one of the probable results of a change of decision, it would .have added very greatly 'to the force which I then believed the maxim “ stare decisis" was entitled to. And though I never could have felt the slightest doubt of the incorrectness of the former decision, I might have felt bound to follow it. And it is not yet too late to return to it, if duty requires it to be done. I have thought much and anxiously upon this point, and I have come to the conclusion that the consequences of going backward may, after all, be more disastrous than those of going forward. The latter may produce some inconvenience and trouble in the re-adjustment of such taxes as may be found invalid during the few years when the law of 1854 was acted on. But that such re-adjustment is practicable and~within the power of the legislature, I hare no doubt. The case of People vs. Seymour, 16 Cal., 332, is a well considered ease sustaining this power, and the power is assumed ’ x to exist without question, in the opinion of OhRISTIANCY, J.,-in Woodbridge vs. The City of Detroit, 8 Mich., 311-12.

- -But if we go backward, we must say that particular classes of property may be taxed at less rates than others, and that the legislature may make whatever discrimination they please in the rates of taxation, provided only that each class is taxed alike. The evils and injustice to be apprehended from this construction, were sufficiently pointed out „ in the former opinions upon this question. And our country is now passing through an ordeal in which, I doubt not, those evils would be cruelly illustrated under that construction, in responding to the immense amount of treasure demanded from the loyal states to sustain the government in its mortal struggle. 'The small property owners who constitute the great mass of the people, usually pay their taxes without question, and seldom combine for the purpose of procuring any special privileges or exemptions. But capital, always keen-eyed and vigilant, always equally ready to grasp at the profit and shrink from the burden, — often able to bring to bear powerful and dangerous combinations of influence upon legislative bodies — will be sure to take advantage of such a construction of the constitution, and to shift upon others the burdens which itself ought to bear. True, such injustice may be borne for one year, or even for many years, without fully developing its fatal effects. But as the coral insects, thoughworking almost imperceptibly, do in process of time erectislands and continents in the seas, so by an opposite process, unjust taxation, with a slow and steady destruction, eventually wastes the victims on whom it is inflicted. It was to guard against this that our constitution was framed as it is. And believing as I do, that a return to a construction which virtually annuls its entire efficiency for that purpose, would be more disastrous than any inconvenience that would result from enforcing the obvious mean™S instrument, I feel bound, for one, to stand our last decision.

was argue¿ by counsel in another case, that every tax assessed since the law of 1854, was necessarily illegal. It was said that if that law was void as a violation of the rule of uniformity, the law taxing other property must be equally so; because, being but parts of one whole, if one .part violated the rule of uniformity, because it did not correspond with the other, the other must equally violate it, because it did not correspond with the one. I think this argument would be correct if applied to a law prescribing different modes of taxation in such language that if one mode were held invalid, it would leave no uniform system applicable to all taxable property. But' where such a system would remain, I think the argument is not correct. Let me illustrate it. Suppose A, B and 0 to represent the different kinds of taxable property. If a law says that A shall be taxed at one rate, B at another, and 0 ata third, it is obvious that no valid tax could be assessed under such a law. If one part violated the rule of uniformity, so would each of the others. But if the law were first enacted, that all three should be taxed alike, and then afterwards another law should attempt to make an exception in regard to one, the exception being held void would leave the prior uniform rule undisturbed, and consequently valid. This was the case in respect to the law taxing railroads, and therefore the taxes assessed since that are 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 according 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. is the fact which is shown in this case, that they made their list according to the unconstitutional law, that renders illegal.

One other question has been considered by us in consulting upon these cases. In the case of Warden vs. The Supervisors, &c., 14 Wis., 618, and in the case of Miltimore vs. The Supervisors, &c., ante, p. 9, we held that where a plaintiff asked tbe aid of a court of equity to restrain a tax sale,, and it appeared from bis own showing that tbe tax was not pressive, but on tbe contrary was less than be ought to pay, a court of equity would not aid him; Tbe point is,, whether ," . ' í the same doctrine can be applied to these cases; I 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 a clear prima, facie case of injury when he shows that a large amount of property, which ought to have helped him pay the tax, has been omitted entirely. And the only way by which the effect of this can be avoided, is to assume that the rail and plank roads paid their tax according to the law of 1854, and then to assume that by such payment, they relieved the other property of an amount of state tax. equal to the excess imposed on it by the omission of this kind of property in the tax lists. But I do not see how the court can possibly make either of these assumptions; We decided that the railroads were not bound to pay under the law of 1854; how then can we assume, without proof, that they did ? But if we are to assume at all, I suppose, we should assume as near to the truth as possible; and if soj we would be bound to assume that even if the, railroad companies did pay according to that law, it was a much less sum than would have been their proportion of the taxes according to the general law. In all cases where the amount which any tax payer ought to pay has been or may be ascertained by any means within' his reach, I think it. would be eminently proper for a court of equity to refuse to relieve him from an illegal excess until he would pay what he ought. But in a case like the present, the exact amount which each tax payer ought to pay has’never been legally ascertained, and can be ascertained only by a legal assessment of the tax. .He can therefore only resist the illegal assessment. And when he has shown it to be illegal, and that an amount of tax has been imposed upon him which belonged upon others, I cannot see how the court can, refuse to aid him upon the ground that' he should first show what his tax would have been, if properly assessed, and whether he did not receive indirectly as much benefit from the illegal collection of tbe one per cent, from tbe railroads, as be suffered injury from tbeir omission in tbe tax lists. This would involve a legal assessment of the entire tax, which of course could not be done by any plaintiff, so that it would amount to a denial of any remedy.

For these reasons I am compelled to say that the taxes of which the plaintiff complains were illegal, and that he was entitled to the relief asked. I think the judgment should be reversed, and the cause remanded with directions to enter judgment for the plaintiff.

Cole, J.

I think it logically and inevitably follows from the decisions of this court in Knowlton vs. Supervisors of Rock County, The Attorney General vs. The Winnebago Lake & Fox River Plank Road Co., and Weeks vs. The City of Milwaukee, that the appellant is entitled to the relief demanded in his complaint, on the ground that the taxes therein mentioned are unconstitutional and void. It is true I did not concur in the decisions in the two former cases, and my views upon the question there decided remain unchanged; but still, assuming the construction there given to be correct, I see no possible escape from the conclusion above stated.