On a motion for a rehearing, which was granted, the following'opinions were filed:
DixoN, O. J.I think a rehearing must be had in this case. As to rail and plank road property, I am almost, and I cannot say but fully, prepared to return to the rule of taxation said to have been established by this court in 1855. I am in great doubt and perplexity upon the subject. My views of the constitution remain unchanged. I never had and never can have any doubt about that. I wish I could satisfy myself as well upon every question upon which it becomes my duty to give an opinion. As an original proposition, I should say without hesitation, that we must abide by the constitution as it is; that if it is to be modified, it must be done by the people. Neither the legislature nor this court have any power over it, either to change or dispense with its provisions.
*468But the question is not new. It was formerly before this court, and, we are told, decided differently — that the law taxing railroads and plank ro,ads is no infringement of the constitution. I say we are told this, because we have no authentic information to that effect. The decision comes down to us by tradition. No opinion was written, and no statement of the points resolved by the judges placed upon the files of this court. And this, without intending to reflect on the official conduct of my predecessors, for whom I have the highest respect, I must say, was in my judgment the first great mistake. The next may be that we departed from that decision — notwithstanding the law in that respect was not observed. A question of such magnitude should not have been left in that way, and I have sometimes felt that we ought not to be bound by the adjudication as a precedent. If the court had done its whole duty, written an opinion or filed notes of the points decided, I for one should never have departed from them. But it is said that this should make no difference; that the consequences of overruling the decision at this time are as disastrous as if either or both these things had been done — that it was generally understood and acquiesced in as a final settlement of the question, and the legislation and all the financial matters of the state have been regulated accordingly. It cannot be denied that this is so, and then the doctrine that we must stand by decided cases, and not disturb settled points, applies with peculiar and almost irresistible force. It is urged upon this motion, and was in an oral argument recently made in another case presenting the same question. The argument in this respect is new, for though it has occurred to us, it has not been before urged by counsel in the strong light in which it now appears. The interests involved are immense, and the consequences of adhering to our late decision beyond calculation. The taxes for a series of years in a great state like this cannot be annulled, and every proceeding connected with and depending upon them overturned, without a shock which must be felt by every property owner and citizen of the state. The government itself must suffer great detriment and loss, and not only that, but all the counties *469and many of tbe towns, to an extent amounting almost to complete financial ruin. Estates and titles acquired, and investments made, on tbe faith of a decision of tbe highest court of tbe state, will be swept away, and public confidence . t T-rri i i t destroyed. VV hen the embarrassments or the government will cease no one can tell. Years will pass away, and thousands upon thousands of dollars be expended in legislation, before the evils of such a sudden revolution can be fully known and appreciated. But this is not all. I do not see how the errors of the past are to be corrected except by the levy of a new tax to make up all former deficiencies. I have tried to persuade myself that a re-assessment and rel'evy of the taxes for those years was practicable, but I am satisfied it is not. The obstacles in the way of accomplishing such a scheme are so numerous, and the injustice which will be wrought in many cases so great, as in my judgment to preclude all possibility of its being done. We are then brought to this — the taxpayers of to-day must come forward and pay into the public treasuries, state and county, and in many cases city and town, the unpaid taxes for the past seven years, with the fees, charges, and interest. This cannot be done. The people cannot discharge such an enormous burden, in any one year. Its collection would be impossible. It might be made in three, four, or more years, but not in a shorter time. Is this court authorized, in view of all the facts — can we consistently with duty, inflict such a burden upon the people of the state ? I think not. It seems to me that as to the particular species of property in question before the court in 1855, I must return to the rule then established. As to the past it will be seen thal the method I have suggested for supplying its defects — and I can see no other — carries us fur'ther and further from the rule of equality established by the constitution, for which I have struggled, and which I am still persuaded should be pursued by the legislature. It is better that those evils and inequalities should be endured, than that they should be corrected in this way. They have once received the sanction of this court, and the responsibility for them, be it great or small, rests not with me. The constitution was made for the safety and protection of the *470people, and not to be used as an instrument for their destraction. Oommunis error faeitjus. “Were the court now decide that this construction is not- to be supported, very great mischief would follow. And although, if it were now . , . . res integra, it might be very difficult to maintain such a construction, yet at this day the argumentum ah inconvenienti applies with great weight. We cannot shake a principle which in practice has so long and extensively prevailed. If the practice originated in error, yet the error is now so common that it must have the force of law! Rogers vs. Goodwin, 2 Mass. R., 477. “ It has been sometimes said,” observes Lord ElleN-BOROUG-H, in Isherwood vs. Oldknow, 3 Maule & Sel., 396, “ that communis error faeitjus', but I say communis opinio is evidence of what the law is; not where it is an opinion merely speculative and theoretical, floating in the minds of persons, but where it has been made the groundwork and sub-ir atum of practice.”
The error here, by long usage and the decisions of the court, has, as it were, been wrought into the texture of the constitution itself and become a part of it. It has so long constituted the ground work and subtratum of practice in all matters of taxation, and been so interwoven in all the financial affairs of the government and many of a private nature, that it would seem if ever there was a case where error should have the force of law, it is this. To overturn it now would be like overturning the constitution in any other respect where its construction has been deemed settled. It is fair to presume that the people, if an opportunity was afforded, would justify the interpretation, which has heretofore been given, rather than suffer from the mischiefs which would follow from overthrowing all the transactions of the past. Besides it is not as if we were fixing by our decision the future policy of the state, so long as the constitution remains unchanged. If we were binding the people or the legislature, to an unequal and unjust rule of taxation hereafter, the question would be of far greater moment. • But we are not. Our views of the constitutional provision are well known, and the legislature can adopt them or not as it sees fit. There is, therefore, ample remedy for the future, and *471tbe return, by legislative enactment, to the requirements of the fundamental law, will be easy and attended with none these disastrous results. This, in my judgment, is a very important consideration, and one which should determine ,. . ,, . my action m the premises.
On the one side we ‘have the blessings arising from an equal and uniform distribution of the burthens of government according to the benefits' received, founded in the broadest principles of equity and justice, and established by the constitution itself; on the other, the evils whilch will follow the overturning of all the financial affairs of the past seven years, of which I have given but a mere glimpse. As I have before said, my mind is in great perplexity and doubt, but upon the whole I can see no other way than to go back to the rule established by the court in 1855.
I make this full declaration of my views now, and without waiting for further argument, because of the urgent necessity for an immediate decision. The legislature is about to assemble, convened on this very business, and delay is impossible. Without this, I would not only have cheerfully listened to further discussion, but should have insisted upon it.