I Concur in the holding of my brethren that, "in the light of constitutional and legislative history, the framers of our constitution must be deemed to have used the word “property,” in sec. 1, art. VIII, in a sense broad enough 'to include credits, however unphilosophical may be the treatment of such assets as property for purpose of taxation. I also yield to the authority of the heretofore decided eases in *202this court declaring that taxation both'of the credits and of all the property of the debtors does not constitute such double taxation as to breach the uniformity rule of the constitution,, however clear may be the fact that thereby the debtor is pro tanto taxed twice. Weston v. Charleston, 2 Pet. 449; San Mateo Co. v. S. P. R. Co. 13 Fed. 722, 732. Also I agree-that inclusion of debts of solvent debtors, and exclusion of others, is legitimate classification, upon distinctions germane to the subject of taxation. So that, as to most of the subjects discussed in the opinion in this case, I am in general accord with that document, but to the conclusion reached I think, there is a still further obstacle urged in argument, but passed, without comment in the opinion.. That I shall attempt testate.
If we concede that for purposes of taxation credits are-property, the lawmakers must accept with that concession the-burdens and limitations imposed on them in exercising their power to tax property. The limitation imposed by oúr constitution is that the rule of taxation must be uniform. This-is re-enforced by the fourteenth amendment to the federal constitution, which prohibits the state from denying to any person the equal protection of the law. The state constitution prohibits discrimination in rules of taxation between different kinds of that property which the legislature prescribes-to be taxed, while the federal constitution protects the owners of property against discrimination in tax law's, as in all others. Black v. State, 113 Wis. 205, 89 N. W. 522; State v. Whitcom, ante, p. 110, 99 N. W. 468. I have found myself unable to escape the conviction that both of those prohibitions have been defied in that provision of our legislative scheme-of taxation'which permits the deduction of debts from, the value of the credits owned by any person, in ascertaining their taxable value, without permitting such deduction from the values of other property. The statutory rule of taxation of all prescribed property is that the true-*203cash value is to be ascertained, and that all general taxes are-to be levied proportionately to such values. Assenting, as I do with some hesitation, to the view of my brethren that the statutes direct the ascertainment of the cash value of credits*, as distinguished from their nominal or face value, I still cannot think that uniformity of rule is maintained when deductions are permitted from the value of one kind of the property prescribed to be taxed, and not from that of other kinds. I think that my brethren would hardly hold that uniformity was maintained in a statute which permitted deduction of the owner’s debts from the value- of his cattle but not of his horses, of his wheat but not of his corn; but I can see no difference between such cases and that now before us, in the-principle involved. If a good $1,000 bond and $1,000 worth of lumber are both alike property, in the constitutional sense,, why should one be valued for taxation at $500, and the other at $1,000, as they would be if the owner of each owed $500 ? Such discrimination signifies a perhaps unconscious recognition of a philosophical absurdity in attempting to class credits with tangible assets as taxable property, but only upon such classification does the power to tax credits as property exist at all under our constitution. Some have suggested that one-whose wealth consists of credits has wealth only to the excess of his credits over his debts. This may be conceded without advancing the argument. Equally the wealth of him who has tangible assets is not correctly measured unless his debts-be deducted. In neither case, however, is that material to the question of taxation, for it is not the wealth of the individual on which the constitution authorizes taxes to be laid,, but the property within this state. Others have urged that credits constitute a fund from which men ordinarily expect to discharge their debts, and that somehow this justifies taxation of only the balance. The premise, however, is unfounded in fact. The farmer, the merchant, the manufacturer, ordinarily relies on the proceeds of his crops or stock in trade to> *204pay Ms current debts, rather than the securities in which he may have invested. Usually only he who has not surplus for investment relies on his credits to meet debts. He whose wealth is mainly invested in bonds and mortgages does not. .Ho other ground worthy even of mention has, to my knowledge, ever been advanced to justify such discrimination. I. .find myself unable to conceive any. While, of course, I must -concede that not only may the legislature exempt certain classes of property, by implication from the power to prescribe that which shall be taxed, and may even classify that which they do prescribe for taxation, so that some may be treated differently from other classes, without disobedience of the behest that the rule be uniform, still such classification must be legitimate — must be based upon distinctions having u-eal relation to the differences in the rule of taxation applied "to each. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098; Black v. State, 113 Wis. 205, 89 N. W. 522; State v. Whitcom, ante, p. 110, 99 N. W. 468. Finding, as I do, no differences between credits and tangible property in any wise germane to the valuing of one with deduction for debts, and the other without, I cannot escape the conclusion that the rule of uniformity 'is infringed by this statute.
The still further classification attempted by the legislation of 1903 (ch. 378, Laws of 1903), whereby the most solvent class of credits — those secured by mortgage on real estate— is exempted entirely, while others are taxed, will present curious and interesting questions when, if ever, it conies up for judicial consideration.
The further question whether certain persons are denied “equal protection of the laws” by the provision now under discussion, as that phrase is used in the fourteenth amendment to the federal constitution, is one upon which this court cannot speak finally unless it speak affirmatively. -The final construction and enforcement of this prohibition lies with the courts of the United States. The ultimate court of that *205jurisdiction has not as yet Rad occasion to declare upon the-validity of such a tax scheme as ours, but the circuit court has, and that, too, in no uncertain terms, by the pen of one-of the ablest of the then members of the supreme court—Mr. Justice Field. In San Mateo Co. v. S. P. R. Co. 13 Fed. 722, and Santa Clara Co. v. S. P. R. Co. 18 Fed. 385, was-considered a law which authorized deduction of mortgage-debts from the value of other property in ascertaining its valuation for taxation, but denied such deduction from the value of property belonging to railroad companies. It was held that since the law designated property as the subject of taxation, and its value as the. basis of apportionment, the allowance of deduction of mortgage debts from true value of some, and the denial of similar deduction from that of other, property in the taxable class, denied to the owners of the latter equal protection of law. The former of these cases was taken to the supreme court, but was affirmed on other grounds; that court recognizing the very grave importance of the question whether the state law was in defiance of the federal constitution, but restraining itself from expressing any opinion thereon, because such question belonged “to a class which that court should not decide unless their determination was essential to the. disposal of the case.” S. C. 118 U. S. 394, 410, 6 Sup. Ct. 1132, 1140. These two cases have, I believe,, never since been seriously questioned in the federal courts,, but have often- been referred to approvingly and as authority. Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. 168. They seem in accord with the principle decided in People v. Weaver, 100 U. S. 539, which held that a law permitting deduction of debts from the total of other personal property,, but denying such deduction from value of stock in national banks, was discriminatory against the latter and therefore forbidden by sec. 5219, R. S. of U. S. I shall not feel justified in occupying space to quote, as I should like to do, from the very clear and vigorous arguments of Eielu, J. Suffice-*206it to say that they convince me that equal protection of the laws is denied when a creditor class is created of those whose credits equal or exceed their debts, and an immunity from taxation granted them which is withheld from the debtor class, composed of those whose debts exceed their credits. Of the policy of such a law, I might properly express opinion only as a citizen.