The following dissenting Opinion was delivered by
Scates, J.The only question of importance in this case is, whether the Act of 1827, declaring what property shall be taxable, and prescribing the mode of levying that tax, is conformable to the Constitution of this State. To this this .question I apply myself, not without distrust of my own judgment, in differing with the Court.
The Constitution prescribes and limits the power of the Legislature in this language: “That the mode of levying a tax shall be by valuation, so that every person shall pay ? tax in proportion to. the value of the property he or she has in his or her possession.” In ascertaining the mode thus prescribed, we should look to the whole context of this section, and every part of it, as explanatory of the mode. And when that mode is ascertained, it is our duty to declare it, and the duty of the Legislature to obey it, however inconvenient the rule may be, or the restriction imposed.
The mode, then, shall be by valuation. It cannot, therefore, be a specific tax, although it may be direct, or indirect. If there had been no further restriction than this, much latitude might be given, and discretion exercised in making that valuation to suit the circumstances of the people, the situation of their property, and the exigencies of public affairs. But I must attribute some meaning to the remainder of the section, and that meaning which its connection with the former part of the section demands. I do not feel warranted in treating it as unmeaning, as seemed to be done by counsel in argument. The mode of levy shall, then, not only be by valuation, but that valuation shall be made “so that,” or in such manner that “ every person shall pay a tax in proportion.” In proportion to what? it may be asked-The remainder of the section answers the inquiry. It shall be his share of the tax, his just and equal proportion, according to the “value of his property in possession.” Now it is observable, that in this section, the 'Constitution is speaking of property as the basis, the subject of taxation. When, therefore, “a tax” is levied upon property, and this is a term in law including-all things real, personal and mixed, the mode of doing so shall be by valuation, and that valuation shall be made “so that,” or in such a manner, as to ascertain, first, the value of the property in possession, and second, that his proportion only of the tax shall he laid upon him. This, then, I lay down to be the rule of taxing property, that such a valuation of property is to he made, as will ascertain each owner’s proportion of the sum to be raised as revenue, that his proportion shall hear the same ratio to that sum, as the value of his property subject to taxation, bears to the aggregate value of all such taxable property in the State.
I know that arithmetical certainty can neither be expected, nor attained in any mode of adjusting and apportioning each one’s share of the public.burden. In practice it depends upon human judgment, though frail, and which may be blinded by passion, and prejudice, and misled by weakness, ignorance, and want of information. Yet, when guided by the light of experience, common sense, and a knowledge of facts, an actual appraisement by men is the nearest approach to the the actual value of property known to the Government, or the rules and principles of Law and Equity. We have been too long accustomed, in Courts of Law and Equity, and in the common business affairs of life, to appeal to the judgment of men as witnesses, as jurors, as appraisers, as assessors, &c., &c., to fix the value of property, now to allow ourselves to doubt or question the practical correctness of this mode of ascertaining it. We appeal to it for certainty, and we rely on it with confidence.
An actual appraisement is the only practical mode of valuation which will enable the Government to levy a tax, so as to make each one pay his proportion, according to the value of his property. And I think it no answer to my reading of the Constitution, that the judgment of assessors, in making an actual appraisement, from any of the causes I have mentioned, or others, might produce as great, or greater inequalities, than the mode adopted by the Legislature.
Having made an expose of the reading of the Constitution, as I understand it, I will proceed to examine the provisions of the statute, under which this title was acquired. The first section, R. L. 513, declares all lands held by individuals, or bodies politic or corporate, except town lots, shall be subject to taxation; and for that purpose, were divided into classes, valued and taxed as follows: lands of the first quality were put in the first class, valued, at four dollars, and taxed at the rate of two cents per acre; lands of the second quality in the second class, valued at three dollars, and taxed at the rate of one and a half cents per acre; lands of third quality in the third class, valued at two dollars, and taxed at the rate of one cent per acre. The fifteenth section authorizes the County Commissioners’ Court, when the tax on land shall be insufficient, to levy a tax not exceeding one half of one per cent upon town lots, if they be not taxed by the Trustees of such town, on slaves, on servants, carriages, distilleries, stock in trade, horses, mares, mules, asses, and neat cattle above three years old, watches with their appendages, and such other property as they shall order and direct. The thirteenth section requires the county Treasurer to take a list of the taxable lands and other property; and may administer an oath to the owner touching the quality of his lands, and the quantity and value of his other taxable property. And if he is satisfied that the property is listed below its real value, it is made his duty to alter the valuation in such manner as to make it as nearly equal to the general valuation of the same species of property, as possible.
There has been but one reported adjudication under this section of our Constitution, which was the case of Sawyer v. The City of Alton, 3 Scam. 128. In this case, it was held by the Court, that an Act of the Legislature which required each person of a certain age to perform three days labor on the streets and roads, was conformable to the Constitution; that the Constitution imposed no restrictions upon the power of the Legislature to impose other taxes than those upon property, for when property was the basis of taxation, it should only be levied upon the principle of valuation; that it could not be arbitrary, according to kind or quality without reference to value.
There was another case decided by this Court, in which the power of the Legislature, as exercised in the case now under consideration, was sustained by the Court. No opinion, however, was ever delivered.' The Legislature'gave a similar construction to the Constitution, the year after its adoption, and this has been repeated, and acquiesced in during a period of twenty years, not however, without doubts among jurists; and doubts expressed by offering resolutions for the consideration of the Legislature. Contemporaneous interpretations are entitled to full weight in all cases of doubtful construction. They are admissible in no other case. In all cases, if I doubted, I should decide in favor of the power, as Lregard it one of the vital powers of a Government. The power, therefore, to discriminate amongst the subjects of taxation may be doubtful under our Constitution, but should not therefore, be denied. But when a certain species of property is selected for taxation, it is certainly not in the power of the Legislature to exempt any portion of that species from bearing its part of the burden. Town lots have been exempted, unless the tax from other property proves insufficient. The Legislature had no power to make the exemption, having selected real estate as one of the kinds of property to be taxed. Town lots should have paid their equal proportion according to their value. Such an exemption of a portion of the same species of property throws an undue proportion upon owners of other land, in raising the requisite sum for the maintenance of the Government. In this respect, the Constituation is violated by the Act.
Again, by the Act, lands are put into three classes; the first class is valued at four, the second at three, and the third at two dollars per acre; and a tax of two cents per acre is laid upon the first class, one and a half upon the second, and one cent per acre upon the third. This is a specific tax of so much per acre. Such a tax the Legislature has no constitutional power to levy. The classification, regarding the local advantages and quality of the land, onfy, may be practically true, or near enough so; but when it is applied to the value, instead of the quality, no one can admit its correctness. All the improvements that industry and-capital can make upon the land, become part of the land, and are included within this classification. Land is always worth what it will bring in cash, sometimes more. From observation and common experience, we know that it will bring from fifty cents to twenty thousand dollars per acre, more or less, as it may be more or less advantageouly situated in cities for business houses, and in the country for farming. It never has been, is not now, and never will be true, that its value is from two to four dollars per acre throughout a State like this. That mode of valuation, only, can be adopted under the Constitution, which will ascertain its value, as it may be affected by these various circumstances, and enhanced by improvements, valuable mines, mill sites, &c. Á mere arbitrary valuation will not satisfy the Constitution. It must be made in such a manner, or “so” as to make the owner pay a due proportion, and that proportion must bear its just ratio to the aggregate value of all the taxable property, and the sum to be raised as revenue. It needs no argument or illustration, to prove that two, three and four dollars per acre is the value of all lands in this State. I have said that all improvements attached to the land are a part of the land. All such parts of the lands as consist in houses, fences, tillage, mills, and such like fixtures, are excluded by this valuation, and are therefore exempted. Here is, then, by this Act, not only an exemption of a portion of the same species of property, to wit, town lots, but also an exemption of a portion of the same property, to wit, houses, mills, &c. The proportion of the tax that would have been paid by the owners of these, according to their value under an appraisement, has been added to the proportion paid for the residue. So, instead of paying a tax in proportion to the value of this kind of property in possession, the owners of one part are made to pay a greater amount in proportion to the value of the parts and portions exempted. If the twentieth section means this, it has no meaning at all. Suppose all houses were put into three classes, and their foundation walls were valued at two, three and four dollars apiece according to the class, and taxed at one, one and a half, and two cents each. Would any one hazard his reputation for sanity, by saying, that all owners of houses paid a tax in proportion to the value of their houses? Would not the character, size, quality and style of the superstructure, as well as its location, add to, or diminish its value? Yet this would be as rational, and as near the troth in ascertaining the value? as this legislative valuation does.
Again, this valuation, by excluding the value of town lots and houses, and other improvements on the land, has thrown an undue and unconstitutional proportion of the tax upon personal property. For this latter hears its full proportion of all that is thrown upon it, by being actually valued by the owner upon oath, or by the assessor.
The law cannot, for a moment, hear the test of a comparison with the Constitution. Contemporaneous construction cannot meet and overcome the plain reading of the Constitution, nor distinguish away its palpable violation. The traditional history of the time would throw more light on the law than the law does upon the Constitution. By compact, the State had agreed not to tax non-residents higher than residents. Much valuable land was in their hands. The Constitution was satisfied by a legislative valuation into three classes, while the law collected of the non-resident for his wild unimproved acre, and of the resident for his improved acre, its two cents each “so as” to make every person pay a tax in proportion to the legislative valuation, not the value of his property. However inconvenient or impolitic a constitutional provision may be, when understood, it must he obeyed. It is no less a violation of the Constitution to fritter away its meaning by distinctions, than openly to contravene its letter.
A review of some judicial determinations, in other States, upon their Constitutions? may throw some light u.pon this subject.
The Constitution of Massachusetts provides that the General Court shall have power to “to impose and levy proportionable and reasonable assessments, rates and taxes, upon all the inhabitants of, and persons resident, and estates lying within the said Commonwealth; and also to impose and levy reasonable duties and excises upon any produce, goods? wares, merchandizes, and commodities whatsoever, brought into, produced, manufactured, or being within the same.” e*'And while the public charges of Government, or any part thereof, shall be assessed on polls and estates, in the manner that has heretofore been practised, in order that such assessment may be made with equality, there shall be a valuation of estates within the Commonwealth taken anew once in every ten years, and as much oftener as the General Court shall order.” The General Court provided a mode of valuation by appraisement. In 1812, the General Court passed an Act, levying a tax of one half of one per cent, semi-annually, upon the capital stock paid in, in every banking corporation in operation, on the first Monday of October of that year; and on default of payment for thirty days after the same became due, the Treasurer was authorized to distrain. The plaintiffs were incorporated in 1799. Upon these facts, the case came into the Supreme Court.
The plaintiffs contended that they could not be subjected to a tax, or tribute, because the Legislature is, by the Constitution, limited in its powers of taxation to an equal and proportionate assessment upon all the property in the Commonwealth; and that it has not the power to select any individuals, or company, or any specific object of property separate and distinct from a general tax upon individual companies and property. It was held by the Court, that under the former clause of the Constitution, authorizing the assessment of proportionate taxes and rates, this Act could not be justified and sustained, because those taxes must be proportional upon the inhabitants of, persons resident, and estates lying within the State. To, select any individual, or company, or any specific article of property, and assess them by themselves, would violate that provision of the Constitution. But it was held, that the power to levy duties, and excises upon commodities, amongst other things, authorized this tax, and may also include the license imposed upon attorneys and barristers at law, vendue masters, tavern keepers, and retailers, and might include other employments sr handicraft. Portland Bank v. Apthorp. 12 Mass. 261.
The Constitution of New Hampshire provides, that the General Court may “impose and levy proportional and reasonable assessments, rates and taxes, upon all the inhabitants of, and residents within the State, and upon all the estates within the same.” “And while the public charges of Government, or any part thereof, shall be assessed on polls and estates in the manner that has heretofore been practised, in order that such assessments may be made with equality, there shall be a valuation of the estates within the State taken anew once in every five years at least, and as much oftener as the General Court shall order.”
The Legislature propounded to the Supreme Court the following questions: “Has the Legislature a constitutional right to grant a tax upon lands in a particular unincorporated place, for the purpose of making, or repairing roads in such a place? And, whether they have such right to grant a tax upon lands in an incorporated place, and for the same purpose?” The Supreme Court resolved, and answered the questions in the negative, that the constitutional right of the Legislature to impose taxes cannot, by any sound rule of construction, be held to extend further than to impose proportional and reasonable taxes. The equality intended is, that the same tax shall be laid upon the same amount of property, in every part of the State, so that each man’s taxable property shall bear its due proportion of the tax, according to its value. And a tax thus laid upon the taxable estate of the people is a proportional tax, within the meaning of the Constitution. The taxes are also to be “reasonable,” and they say the word “reasoriable” means just; and that the sense of the clause is, that taxes shall not only be laid proportionally, but in due proportion, so that each individual’s just share, and no more, shall fall upon him. They further remark that, “to establish rules by which each individual’s just share and equal proportion of a tax shall be determined, is a task of much difficulty, and a very considerable latitude of discretion must be left to the Legislature on the subject.” “Within the limits of this discretion as to the, selection of proper subjects of taxation, and the proportion of the tax that shall be levied upon each subject, the authority of the Legislature is without question.” See Opinion of the Court, &c., in 4 N. Hamp. 565.
The Constitution of Arkansas provides, that “all property subject to taxation shall be-taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property, from which a tax may be collected, shall be taxed higher than another species of property of equal value: Provided the Legislature shall have power to tax merchants, hawkers, pedlers, and privileges, in such manner as may from time to time be prescribed by law.
The Legislature passed a law, imposing upon the keeper of every billiard table in the State, the sum of five hundred dollars for each table for every six months; and also a tax upon each stable horse, equal in amount to the price of the services of such horse to one mare. It was contended that these taxes were authorized by the power to tax “privileges;” but the Court held that the law was unconstitutional and void; that these were not “privileges” within the meaning of the Constitution, but natural rights; that in taxing property, it must be so regulated that every species and description of property, subject to taxation, shall bear and pay an equal ratio, or amount of revenue to the State. This rule, as to the State revenue, is inflexible, and leaves with the Legislature no power to discriminate and fix upon one description or species of property, a greater tax than that fixed by law upon every other description or species of property, of equal value subject to taxation; and that, as property, they cannot be subjected to any other than an ad valorem tax. Stevens v. The State, 2 Arkansas, 298, 312.
Although in Kentucky there is no particular provision relative to, or a restriction upon the power of the Legislature in relation to taxation, yet the Courts, under the provisions of a Bill of Rights, declaring the equality of freemen, and that no man, or set of men are entitled to exclusive privileges, and that no man’s property shall be taken for public use, without just compensation, say, that common burdens should be sustained by common contributions, regulated by some fixed general rule, and apportioned according to some fixed ratio of equality. If a capitatiqn or personal tax be levied, it must be imposed on all the free citizens equally and alike; or if an ad valorem, or specific tax be laid on property, it must bear equally according to value or kind on all the property, or on each article of the same kind owned by every citizen; and no citizen, or class of citizens, owning any property of the kind subjected to taxation, can be constitutionally exempted. An exact equalization of the burden of taxation is unattainable and utopian; but still, there are well defined limits, within which the practical equality of the Constitution may be preserved, and which, therefore, should be deemed impassable barriers to legislative power. Taxation may not be universal, but it must be general and uniform. The Legisla-' ture, in the plenitude of its taxing power, cannot have constitutional power to exact from one citizen, or county, the entire revenue. Sutton’s Heirs v. Louisville, 5 Dana, 31; The City of Lexington v. McQuillan’s Heirs, 9 do. 516, 517.
The Constitution of the United States authorizes Congress “to levy and collect taxes, duties, imposts and excises;” but all duties, imposts and excises shall be uniform throughout the United States. “No capitation, or other direct tax shall be laid, unless in proportion to the census, or enumeration, hereinafter directed to be taken.” Congress passed an Act laying “a tax on carriages for the conveyance of persons, kept for the use of the owner.” A question was raised, under this statute, whether it was a direct tax, and therefore to be apportioned according to the census. It was held, that it was not. There are two rules to be observed by Congress, in laying a tax under the Constitution, to wit: the rule of uniformity, when they lay duties, imposts and excises; and the rule of apportionment, according to the census, when they lay a direct tax. If there be any other species of taxes, that are not direct, and not included within the words “duties, imposts and excises,” they may be laid by the rule of uniformity, and not as Congress shall think proper and reasonable. The Constitution does contemplate other taxes than direct taxes, duties, imposts and excises. This tax is included within the term “duties,” and is indirect, and has, in this instance, been laid according to the rule of uniformity, and not apportionment. Taxis a generic term, and includes under it, first, direct taxes, secondly, duties, imposts, and excises; thirdly, all other classes of an indirect kind, and not within any of the classifications enumerated under the preceding heads. That a capitation is a direct tax, and in theory and practice, a tax on lands is deemed to be a direct tax; and that it is questionable, whether any other tax is a direct tax within the meaning of the Constitution. Hilton v. The United States, 3 Dallas, 171; S. C. 1 Peters’ Cond. R. 83.
I have given the views and decisions of five different enlightened Courts, upon the constitutional power of the Legislature in levying taxes. In Kentucky, without a constitutional restriction upon legislative power, the Courts declare that upon principles of natural justice, and republican liberty, the Legislature have no power to impose a partial taxation. The Courts in Arkansas deny the existence of a power in the Legislature to declare a natural right a “privilege,” and then to tax it as such. In Massachusetts the Courts say, that under a power to levy proportionable and reasonable assessments, rates and taxes upon estates and persons, the Legislature cannot levy a tax upon the capital stock paid in, in a Bank. The Courts in New Hampshire deny to the Legislature, under a similar Constitution, the power to levy a land tax upon a particular town or county.
If such provisions impose such limitations and restrictions upon legislative power, how much less could we, under the broad provision of our Constitution, requiring a proportionate value, sanction a law exempting a large portion of the same species of property from any portion of that burden? I cannot bring my mind to doubt, or believe, that the Legislature can exempt any portion of the kinds of property to be taxed; or dispense with an actual appraisement when assessed, it being the only mode of valuation, which will correctly ascertain its value, “so” that every person shall pay his proportion.
This is the only point upon which I differ with the majority of the Court.