(dissenting). This is an action to recover a tax paid under protest assessed under sec. 6, ch. 15, Laws of 1935, enacted March 27, 1935, which by its terms imposes an emergency tax on persons who received dividends from Wisconsin corporations during the year 1933 which were then deductible from the income on which the normal income tax of the person who received them was computed.
The claimed basis for the imposition of the tax upon the species of income covered by it and not imposing it upon any other species of income during that year, is that all other species of income were included in the income on which the normal income tax was computed, and were thus taxed, while the dividends covered by the section were not included and not taxed. It is reasoned that as these dividends might properly have been taxed during the year 1933 and were not then taxed, it is proper to tax them now, by analogy to the rule that property or income omitted from taxation during one year may be taxed in subsequent years on discovery of the omission.
That reasoning would support a tax imposed by a statute of 1935 on church property and all other property exempt from taxation by the laws as they stood in 1933. Would such a tax be legal, or would it be an illegal interference *330with vested property rights ? This question was propounded in First National Bank v. Covington (C. C), 103 Fed. 523, 527, where it is said that the court would not say that there might not be an extreme case where retroactive taxation for a previous year upon property then not subject to taxation at all might be levied, but points out that if the power exists at all, there is no limit to its exercise, and under it property exempt by law might be taxed for so many years back that it would be wholly confiscated. The latter of course would not be permissible.
In the Covington Case, supra, a state statute by its terms provided that by reason of the- fact that a prior statute taxing the franchises of national banks had been declared invalid by the supreme court of the United States, a tax was imposed on the shares of stock of such banks within the state, and by a section of the. latter statute it was applied retroactively to include taxation of shares during the period between the two enactments. The retroactive section was held unconstitutional and a preliminary injunction was granted against assessing any tax under the latter statute for the period prior to its enactment. The period reached back several years, but the injunction went against taxation for the last year of the period as well as the first. It is stated in 2 Cooley, Taxation (4th ed.), § 520, upon the authority of this case, that “It would seem that a statute cannot impose retroactive taxation for previous years upon a class of property not then subject to taxation,” and this statement is cited with approval in Norris v. Tax Comm. 205 Wis. 626, 628, 237 N. W. 113, 238 N. W, 415.
In Weber v. City of Detroit, 158 Mich. 149, 150, 122 N. W. 570, it is held that a statute imposing personal liability for special improvement assessments made prior to its enactment, where no such liability existed prior to its enactment, was void. For like reason a tax levied on property or an *331item of income for a period when it was exempt from taxation would be void.
The only adjudicated case bearing directly upon the precise point under discussion that I have been able to discover is the Covington Case, supra. I find two other cases, however, that bear upon it indirectly and to' my mind quite persuasively. In the Matter of Pell, 171 N. Y. 48, 63 N. E. 789, a statute was involved enacted in 1899 that imposed an inheritance tax upon all estates upon remainder or reversion which vested prior tO' the date of a previously enacted general inheritance tax statute, but which would not come into actual possession or enjoyment until after the date of the enactment, to be taxed when the recipient came into possession. The statute was declared unconstitutional because its effect would be to “diminish the value of these vested estates,’to impair the obligation of a contract, and take private property for public use without compensation” (p. 55). In the instant case the respondent’s property in the $12,000 of income involved, became vested in him at the time he received it. Now to impose a tax upon it under the statute is to diminish its value, and to take property for public use without compensation precisely as much as did the New York statute stated.
In Portuondo’s Estate, 19 Pa. Co. Ct. Rep. 419, an inheritance tax statute was involved that provided that “so much of the estates of persons heretofore deceased as has not been actually distributed and paid to persons entitled thereto prior to the passage of this act shall be liable to the tax imposed by this law, as well as the estates of persons who may die hereafter.” This was held unconstitutional on the ground that “when the right vested under existing law;s is taxed by a subsequent law, for general purposes of government and not for any purpose specially benefiting the owner of such right, it is not only taking the property of such owner without compensation, . . . but it is violating the other con*332stitutional provision that . . . taxes shall be equal” (p.423). The opinion quotes from 1 Kent, 455 : “A retrospective statute, affecting and changing vested rights, is very generally considered, in this country, as founded, on unconstitutional principles, and consequently inoperative and void.”
It is stated in the opinion of the court that it has been held by this court and by the supreme court of the United States that income taxes are not void as retroactive if applied to recent transactions. The cases so holding were considering net income, as distinguished from individual items, and income received over a consecutive period next antecedent to the enactment of the taxing statute, not a period wholly disconnected with the time <bf the enactment and separated therefrom by an intervening period not subject to the tax imposed. It seems to me that the opinion of the court in effect concedes the invalidity of the retroactive feature of the tax when it says : “While the present tax may approach or reach the limit of permissible retroactivity, it does not exceed it.” It is not for the court to fix the limit of retroactivity. If income from dividends received in 1933 were properly subject to taxation why not those of 1932 or 1931 ? Why not go back to 1929, when dividends were many and large, instead of 1933, when they were few and small ? The basis (1) of the court’s rule by which to test the validity of the tax, that the year must be “sufficiently recent so that the income of that year may reasonably be supposed to have some bearing upon the present ability of the taxpayer to pay the tax,” seems to me to be here absent. I see no connection between receipt of income from dividends in 1933 and present ability to pay a tax upon that item of income. Dividends of 1933 have “gone with the wind” by this time in all but comparatively few cases.
If it be conceded that because the dividends covered by the statute were not taxed as income during the year 1933 they might properly be subsequently taxed as income received *333during that year, the tax so imposed would have to be an income tax, computed at the income tax rate in force during that year, or the equal protection clause of the Fourteenth amendment to the United States constitution would be violated.
Dividends from Wisconsin corporations, which are the only ones within the statute, certainly cannot be taxed at a higher rate than dividends from other corporations, else there is inequality. It is .true that equality of rate within the class is the only equality necessary to validity of an income tax. But the mere fact that one corporation is a corporation organized under the laws of Wisconsin and another is a corporation organized under the laws of another state, cannot form a basis for taxing a recipient of a dividend from the former and not taxing the recipient of a like dividend from the latter. Recipients of income constitute the class taxed under an income tax statute. If conceivably recipients of corporate dividends may constitute a separate class for income tax purposes, still all recipients of corporate dividends must constitute the class, not recipients of Wisconsin dividends only.
Under the instant section income from dividends is taxed at a rate entirely different from the rate imposed on incomes in 1933. A rate of taxation by the statute lower than the normal might conceivably be supported, because the corporation paid a tax on the earnings comprising the dividends, but a higher rate cannot possibly be. The first $2,000 of income under the statute involved would carry a slightly less tax than the normal tax, but on all above that the tax is higher. On the dividends received by the instant taxpayer the excess under the statute over the normal rate of 1933 is over $200. Moreover, taxpayers under the normal income tax law were entitled to offset capital losses. Such offset is denied by the instant statute. The instant taxpayer had *334large capital losses then deductible under the normal income tax statutes.
Counsel for appellant seem to contend in their briefs that the uniformity clause of the state constitution does not apply to income taxation because graduated rates of taxation are expressly provided for. But we have here something more than graduated rates. One class of income is taxed by one table of graduated rates, without deductions for capital losses, while all other kinds of income were taxed in 1933 at lower graduated rates with deductions for such losses. True, the uniformity clause when the constitution was adopted applied only to property taxation because that taxation was the only kind then covered by the clause. See sec. 1, art. VIII, Const., as contained in the statutes of 1858. But when the section was subsequently amended by adding thereto, the declaration of uniformity carried through, and it applies to all other species of taxation subsequently provided for, except as especially excepted by the terms of the 'amendment. This point is sufficiently covered by Nunnemacher v. State, 129 Wis. 190, 221, 108 N. W. 627, where it is said: “Uniformity of taxation or even equality of taxation, as applied to excise taxes, must necessarily mean taxation which does not discriminate, but which operates alike on all persons similarly situated.” There is the broad statement in Appeal of Van Dyke, 217 Wis. 528, 259 N. W. 700, that the uniformity clause does not apply to income taxes, but that is forthwith qualified by the statement that “the only uniformity required ... is uniformity within the class,” and this implies a proper classification.
The inequalities above stated made the tax imposed upon the respondent void if it be considered as an income tax. The tax is referred to in the opinion of the court as a “special income tax.” But it is not in my opinion an income tax at all but a property tax, and considered as such it is plainly *335violative of the uniformity clause of the state constitution. An income tax is a tax on income as a whole, not on individual items of income. It is a tax on net income, as distinguished from gross, and in computing it all items of income must be included. It has been said by this court several times that “In arriving at this amount [of the tax] the legislature takes the gross income of the taxpayer.” Fitch v. Tax Comm. 201 Wis. 383, 230 N. W. 37; Wisconsin Ornamental I. & B. Co. v. Tax Comm. 202 Wis. 355, 229 N. W. 646, 233 N. W. 72. By “gross”, income is there meant “total net” income as distinguished from gross receipts. The statement above quoted is made in relation to the normal income tax, but it necessarily applies to any tax that is an income tax as distinguished from other forms of tax. This court has also many times stated that the word “income” used in the constitutional amendment including income as a subject of taxation must be taken in its ordinary sense, and in its ordinary sense income means net income. It covers gains or profits and these cannot be ascertained from any single item of income. Income is defined in reference to income taxation as “the amoimt of wealth which comes to1 a person within a given period of time.” 26 R. C. L. p. 147'. “In constitutional and statutory provisions in regard to taxation, . . . income appears to be uniformly construed as meaning net income, as opposed to gross receipts.” Ibid. p. 149. With like reason it must be so construed as opposed to mere items of income. “Income means the balance of gain over loss.” Ibid. p. 150. “The income tax is a general tax on all income.” Hudson v. United States (Ct. Cl.), 12 Fed. Supp. 620, 623. The “amount of wealth” acquired during a given period is not measured by a single item of income; “balance of gain over loss” cannot be based on a single item of income; a tax on a single item of income is not “a general tax on all income.” The tax involved is a tax on a specified *336item of money received during the year, and as much a property tax as a tax on any other item of personalty received during the year would be, and if taxed at all would have to be taxed under the uniformity clause as other items of taxable personalty are taxed, unless there be a valid ground of distinction between money received as income and other items of personalty. Income from dividends might perhaps be so distinguished from some other items of income as to justify taxing the former and not the others, but I can conceive of no possible basis of classification as between dividends and interest. Whatever of distinction may be made between these two items would require dividends to be exempted rather than interest, for the source of the dividend — corporate earnings — has already been once taxed against the corporation, while the source of interest — the debt on which it is paid — has not been taxed at all. Whatever its nature may be- considered to be, the tax assessed against the respondent was in my opinion void under the uniformity clause of the state constitution and the equality clause of the Fourteenth amendment of the constitution of the United States, and the judgment of the circuit court should be affirmed.
I am authorized to state that Mr. Justice Nelson concurs in this opinion.