I read in the prevailing opinion an earnest, sincere, and even commendable, desire to uphold a legislative act, chapter 166, Laws of 1935, p. 553, Rem. 1935 Sup., § 11273-1B [P.C. § 6882-138 1/2a] et seq., which has for its purpose, not only the alleviation of those who may lose their property because of their inability to pay the delinquent taxes thereon, but also the creation of a stimulus to such persons to procure and pay the funds necessary for the support of state, county and municipal government. I recognize also the possible effect that a contrary decision may have upon titles to certain properties upon which taxes have been paid in reliance upon the validity of this statute and likewise of its predecessor, chapter 51, Laws of 1933, Ex. Ses., p. *Page 411 125, Rem. 1934 Sup., § 11273-1 [P.C. § 6882-138r] et seq.
Nevertheless, the question of the unconstitutionality of the act of 1935 having now been squarely raised, I am constrained to meet that question and determine it according to the obligatory command of the constitution, rather than by the results that may flow from its enforcement. Even if there were a choice in such matters, I think it is far safer and better, in the long run, to obey the mandate of the constitution, even though it may entail some immediate hardship, than to suspend its force for the time being and thereby weaken its whole effect, simply for the purpose of obviating a presently difficult situation. The constitution does not permit of detours, and I do not believe that they should be encouraged. The constitution may be changed by those who established it, but it cannot be denied by those who are enjoined to obey it.
The fourteenth amendment, which has its sustenance in Art. VII, §§ 1 to 4, inclusive, and which draws its full vigor from its recent passage by the people, provides:
"The power of taxation shall never be suspended, surrendered or contracted away. All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word `property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership. All real estate shall constitute one class: . . ."
The fourteenth amendment is positive and absolute in its terms, inflexible in its command, and permissive of no exceptions. It conforms in phraseology to Art. I, § 29, of the constitution, which declares that "the provisions of this constitution are mandatory, unless *Page 412 by express words they are declared to be otherwise." According to the amendment, the power of taxation shall never be suspended, not occasionally. All taxes shall be uniform upon the sameclass of property, not variant according to conditions or circumstances affecting certain properties within a given class. The word "property," as used in connection with the provision of uniformity within the same class, means everything, whether tangible or intangible, capable of ownership, not something within the designated class. All real estate, not a part of it, shall constitute one class.
In my opinion, there could be no more restrictive embargo laid upon the legislature than is contained in this language. The fourteenth amendment contains no hint of an invitation or permission to the legislative body to seek escape from its imperative utterance. It tells those who exercise the power of taxation just how that power shall be exercised. The method is prescribed and the effect is ordained. Digression is not contemplated or countenanced.
But what has the legislature done in this instance? It has surrendered, in part, and for the benefit of some, the result already accomplished by the exercise of its power of taxation. It has attempted to bestow charity where it has no power to bestow. It has assumed to effect a composition where it cannot compound. It has presumed to prescribe a supposed beneficent remedy when it has no discretion in the matter. It has simply done what it has no power or right to do.
The legislature could not provide that there should be a different levy upon properties within the same class or that the taxes should be variable as to properties within such class. What the legislature cannot do in the first instance, it cannot do subsequently by *Page 413 circumvention, no matter how beneficent its purpose may be. The power of the legislature in matters of taxation is not absolute or supreme, but is subject to two limitations, viz: (1) the provisions of the Federal and state constitutions, and (2) the inherent limitations upon that power. First and foremost of the limitations prescribed by the constitutions of practically all the states is the provision of uniformity, expressed in one form or another. Unless the legislature proceeds within that limitation, it cannot proceed at all.
In my opinion, it is no answer to say, as the prevailing opinion says, that the county may not raise the question of the unconstitutionality of the act. The county is vitally interested in its taxes. Without them, it cannot function. Whatever interferes with its right to collect its taxes, interferes with its very means of existence. More than that, the county treasurer is charged with the amount of taxes levied and extended upon the tax rolls. Rem. 1935 Sup., § 11243 [P.C. § 6882-82]. The treasurer is made the sole collector of all delinquent taxes and all other taxes due and collectible. Rem. 1935 Sup., § 11245 [P.C. § 6882-84]. The power and duty to levy on property and collect any tax due and unpaid are made to continue in, and devolve upon, the county treasurer. Rem. Rev. Stat., § 11257 [P.C. § 6882-96].
It appears to be conceded in the majority opinion that a taxpayer may maintain an action of this kind because he is vitally interested. But the interest of the county is, with respect to its taxes, not less than that of the individual taxpayer, but greater. Its interest is exactly in proportion to the sum total of the taxes to be paid by all its property owners. What they gain by an unlawful deduction, the county loses. If there is anyone legally interested and qualified to *Page 414 raise the question here involved, the county, in my opinion, assuredly is.
I therefore dissent.
MITCHELL, J., concurs with STEINERT, J.