Dissenting. I am not able to concur in the opinion which a majority of the court have pronounced in this case. The case itself presents for consideration precisely the same questions as were involved in the case of the Milwaukee and Missisvippi R. R. Co. vs. The Board of Supervisors of Waukesha Co., decided by this court at the June Term, 1855, (see note to Knowlton vs. Supervisors of Rock county, 9 Wis., 431,) to wit: the validity of those provisions of our revenue law requiring the several rail road and plank road companies of the state to pay annually into the state treasury, oneper centum, of the gross earnings of their respective roads which are declared, shall be in lieu of ail taxes that might otherwise have been imposed upon that class or description of property. The statute upon this subject will be found in chap. 74 of the General Laws of 1854, p. 92; and the same provisions have been incorporated in, and have become a part of chap. 18, R. S. 1859, sections 182, 183, 184, 185, and 186.
It is contended that these provisions of law are invalid, for the reason that they are at variance with the true spirit and meaning of section one, article eight, of the constitution, which reads: “ The rule of taxation shall be uniform, and taxes *47shall be levied upon such property as the legislature may prescribe.”
In the case of The Milwaukee and Mississippi R. R. Co. vs. the Board of Superoisors of Waukesha Co., this court held, after full argument and great deliberation, that chap. 74 of the laws of 1854, was constitutional, and gave judgment accordingly. A majority of the court now think otherwise,' and consider the construction then given to the above cited provision of the constitution erroneous, and have proceeded to overrule that case. It is quite clear that the decisions of this court upon doubtful questions of statutory and constitutional law will not inspire a very high degree of public confidence, if as its members change, they shall feel at liberty to revise and over-rule former adjudications upon such questions, which have been made after the fullest discussion and examination. I should therefore feel some reluctance, in view of the nature of the questions involved, and of the circumstances of the case, in departing from a decision so well considered as that of The Milwaukee and Mississippi R. R. Co. vs. The Board of Supervisors of Waukesha Co., even if subsequent reflection had raised some doubt in my mind as to the conclusions of the judgment in that case; for it is to be borne in mind that the legislature, in the recent revision of the statutes, retained the law of 1854, after it had been in operation some years, which would not have been done, if the system of taxation therein established, when applied to plank and railroad companies, had been considered unjust and unfair by the people of the state.
Besides, as a practical measure, it may be found difficult to frame a law which subjects this kind of property to the same mode of assessment and taxation, in the various towns and counties, as are applied to other property, and which will not be liable to a great deal of fraud and injustice in its administration. Where, for instance, under our present system, *48will the rolling stock of a railroad, its depot buildings, engine houses, machine shops, wood, &c., be assessed and taxed ? It is possible that the inconveniences here suggested would not be insurmountable, and that they might be overcome by some amendments to our present revenue law, but still it is undeniable that such inconveniences are serious, and do exist; and it is but fair to assume that the legislature, in passing the revenue law, took into consideration the difficulties of a system which should require the property of plank roads and railroads to be assessed and taxed in the same manner as other real and personal property, and therefore re-enacted the law of 1854, as being the best that could be devised upon this subject. But however this may be, I do not place my dissent from the majority opinion upon these grounds.
According to my understanding of section 1, Article 8, of the constitution, it was perfectly competent for the legislature to prescribe the manner of taxing railroad and plank road companies, and the principle of uniformity in taxation would not be violated so long as the same rule was applied to all of that class or description of property in the state.
In the case of Knowlton vs. The Board of Supervisors of Rock County, 9 Wis., 410, I gave my views upon the provision of the constitution under consideration. It is unnecessary to repeat what I then said as to the taxing power of the legislature, and the limitations placed upon it by this section. I only propose making a few observations upon the construction given this section by the majority of the court. And it appears to me, that the signal error in that construction is, in supposing that the object and indent of the section were to secure equality in the burdens of taxation, and that its design was to prevent the legislature from discriminating between the different kinds or classes of property, in imposing taxes. It is very apparent that the section consists of two clauses, which essentially modify and control each other. *49The former clause should not he construed apart from the wide discretion given the legislature in the exercise of the taxing power, as contained in the second clause. The power of the legislature to discriminate between different classes of property is ample and unqualified in the latter clause of the section. The language is, taxes shall be “ levied upon such property as the legislature shall prescribe.” Now, if the rule of uniformity forbids discrimination in imposing taxes upon different classes of property, what effect can be given to this language ? It seems to me that no force whatever is given to these words. By tliis construction, all property subject to taxation must be taxed in a uniform mode, according to its value. And if the object of the constitutional provision is to secure equality in the burden oí taxation, and if it is levelled at the power of the legislature to discriminate, and say that all railroad property in the state shall be subject to a different rale of taxation from what is applied to other property, how can the legislature exempt any property from taxation ?
I believe, since the origin of the state government, a certain amount of personal property, burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, and public property, used exclusively for any public purpose, have been exempt from taxation. If the rule of uniformity means equality in the burdens of taxation, how can these exemption laws be sustained ? If I have personal property to the amount of two hundred dollars, is it equal to exempt that from the burdens of taxation, but impose those burdens upon my more fortunate neighbor, who has three hundred dollars worth of personal property ? If I pay a state tax upon my homestead, does not equality require tliat the public or corporate property of the several counties, cities, villages, shool districts, and especially the property of the various literary, benevolent, charitable, scientific and religious societies, should also pay a state tax ? And *50if it is competent for the legislature, consistent with the principle of equality, to exempt all this property entirely from taxation, can it not say that it shall be subject to a greater or less rate of taxation than other property ?
If the legislature can exempt railroads from taxation on the ground of public property or convenience, can it not say- that they shall pay one per centum, of the gross earning of their respective roads, into the state treasury in lieu of all taxes ? Does not the greater power include the less ? I have no doubt but it is entirely competent for the legislature to make these various exemptions; because I do not suppose the rule oí uniformity necessarily implies equality in the burdens of taxation. In imposing taxes the legislature may classify property and the principle of uniformity will be preserved so long as the same class of property is subject to the same rule of taxation throughout the district for which the tax is raised. With any other construction, I am not able to give full and proper effect to the last clause of the section.
I think the motion to quash the writ in this case should be overruled.