dissenting.
I cannot concur with the majority of the court in their opinion in this case, but dissent for the following reasons:
They concede the fact to be, as it doubtless is, that when the taxes in question were levied and paid, the land upon which they were imposed was taxable. This concession accords fully with the unanimous decision of this court in Hagenbuck v. Reed, 3 Neb., 1, which is still pro*362fessedly adhered to, although at the same time practically nullified, because, as expressed in the above opinion, “the action of the legislature since that time in declaring that school lands are not taxable, and providing for the repayment of taxes paid thereon, is entitled to respectful consideration, as tending to show the popular belief that such lands are not taxable.” Has it, indeed, come to this, that the. highest court in the state, the one whose especial duty it is, under the constitution, to expound the law and enforce it, must conform its decisions, not to the law as it is, but to what “popular belief” would make it?'
I have accustomed myself to suppose that the decisions of this court as to the meaning and effect of statutes were, binding upon, and to be observed by, not only individuals, but every department of the state government, the legislature included. But in this it seems I was mistaken. In the case of Hagenbuck v. Reed, before referred to, wherein the taxability of school lands sold by the state but not yet fully paid for was squarely presented, the decision was that they were taxable, and the legislature, after this rule had been acted upon for more' than six years, in the act referred to in the majority opinion, under a “whereas,” declare that such lands “have not been, and are not now taxable for any purpose whatever, ” And to this unwarrantable, unconstitutional, and most offensive assumption, the court with exceeding humility responds, in a seeming apology for its former decision, that it “ is entitled to respectful consideration,” etc.
Well, the legislature having succeeded through the instrumentality of a “ whereas ” in formally reversing the settled rule that these lands were taxable, and thereby establishing the apparent illegality of the taxes that had been collected thereon, an excuse was afforded for directing a repayment. And doubtless some sort of excuse was necessary, for, without one, the scheme of tak*363ing money from the treasury and presenting it, not as a. donation to any of the various public uses for which money may be appropriated by the legislature, but as a naked personal gift, which it was, might have been too-manifestly unconstitutional to have been carried even in that legislature.
But, even if this excuse were something more than mere pretext, which, however, it is not, still I could not admit that the legislature had the constitutional right to impose the burden of repayment wholly upon those counties wherein the money was raised.
These taxes were levied in pursuance of, and for the-various purposes specified in the general revenue law. A large portion was for state uses exclusively, in which all of the people of the state were equally interested, and to which they were bound to contribute in proportion to the taxable property which they possessed. Although the-fact is not disclosed by the record, yet it is but reasonable to presume that, from time to time, as the yearly collections of taxes were made, the money was duly distributed by the treasurer, and has long since been expended for the several purposes to which the laws devoted it. This being so, I would like to know the principle by which the county wherein the money happened to-be collected can be made liable for the portion that has. gone to uses other than its own, to the exclusion of all the others. How, I ask, can the payment of a state debt, or obligation of any kind, be lawfully required of any less than the whole body of the people? Suppose, for instance, that it were now proposed to raise by taxation for-' exclusively state purposes an amount equal to the share that the state has used of the taxes realized from these school lands, could the legislature constitutionally levy the whole of it upon one county, or upon any number of counties less than the whole ? Surely no one will so contend. But what is the difference in principle betweén *364such an imposition — taxation with a view to future expenditures — and one to satisfy an obligation growing out ■of an expenditur a previously made ? I can see no difference whatever, and therefore hold that, in either case, the burden should be laid, and can only be laid constitutionally, upon the whole of the taxable property of the state.
In support of my position on this point, I need only refer to certain provisions of the constitution which bear ■directly thereon, and of the effect of which there can be no reasonable doubt. Section 1, article IX., declares that: “ That the legislature shall provide such revenue as may be needful, by levying a tax by valuation, so that •every person and corporation shall pay a tax in proportion to the value of his, her, or its property and franchises, the value to be ascertained in such manner as the legislature shall direct,” etc. Section 4 of the same article provides that: “The legislature shall have no power to release or discharge any county, city, township, town, or district whatever, or the inhabitants thereof, or any corporation, or the property therein, from their or its proportionate share of taxes to be levied for state purposes, or due any municipal corporation, nor shall commutation for such taxes be authorized in any form whatever.”
This language is mandatory; it could not be more positive. It enjoins upon the legislature the duty of impos,ing the burdens of the state government upon all sec-» tions, and the people thereof, in proportion to the value of their taxable property. If a sum of money is to be raised for any state purpose, contribution must be required from all of the counties alike, and in proportion to the value of the taxable property therein, or these provisions of the constitution are violated. Therefore, if these moneys could lawfully be refunded at all, I am clearly of the opinion that the portion collected and used for state purposes should be borne by the state at large, *365and cannot be, constitutionally, imposed upon tbe county of Washington alone.
But, it is equally clear to my mind that the legislature has no right to provide for the repayment of these taxes at all. As I have already 'shown, they were lawfully levied and collected, notwithstanding the incompetent, and unconstitutional assertion of the legislature to the contrary. Their payment was but the satisfaction of a just debt due from the tax-payer as his constitutional share of the public burdens during the years for which they were levied, and from which the legislature had “no power,” in the language of the constitution above quoted, “to release or discharge” him. Now, if there were no power in the legislature to release the party from the obligation to make the payment, with what reason can it. be held that the money, when paid, may be restored to him ? If such is to be the rule of construction, if these most valuable provisions of the constitution may be thus easily evaded, then indeed may it truthfully be said of that instrument that, in its strength, it is but “ a rope of sand.” '
And there is still another reason, equally strong, why the legislature have not the authority to compel the county to pay over this money — to make this donation to. the defendant in error. The only mode by which the necessary funds with which to do so can be obtained is, of .course, by taxation. But it is well settled that taxation for a purely private purpose is unwarranted. That this purpose is private — that it is simply a gift in no way connected with the public welfare, is established by the fact that nothing is legally due from the county to him to whom the payment is directed to be made.
Speaking on the subject of taxation, Mr. Cooley, in his work on Constitutional Limitations, * 487, says r “ Everything that may be done under the name of taxation is not necessarily a tax; and it may happen that an *366oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle of constitutional government.” And at * 488: “ An unlimited power to make any and everything lawful which the legislature might' see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen.” And again at * 490: "But we think it clear, in the words of the supreme court •of Wisconsin, that ‘ the legislature cannot * * * in the form of a tax, take the money of the citizen and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well being of the community required to contribute.’ Or as stated by the supreme court of Pennsylvania, ‘ the legislature has no constitutional right to * * * levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of legislative power. This- would not be legislation. Taxation is a mode of raising- revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of ■a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them.’ ” See also Freeland v. Hastings, 10 Allen, 570. Morford v. Unger, 8 Iowa, 82. Brodhead v. Milwaukee, 19 Wis., 624. Sharpless v. Mayor, &c., 21 Penn. St., 147. Bristol v. Johnson, 34 Mich., 123. Many more cases to the same effect could be cited, but I deem these sufficient upon a point so well settled.
*367These are the chief objections that I find to the affirmance of this judgment, and I deem them unanswerable. It is very much to be regretted that the views of the court on the points which I have thus discussed were not given in the majority opinion. It would certainly have been a source of great satisfaction to me as a member of the court, and I doubt not also to counsel who so ably presented them in argument, to have seen the reasoning by which they were overcome; to have been advised of the principle of constitutional law under which the legislature can nullify a solemn judgment of this court; and by which the people of a single county can be subjected to .the payment of a state obligation, or taxed for a purpose purely private, and in no way connected with the public welfare. For these reasons I think the judgment should be reversed.