Nunnemacher v. State

108 N.W. 627, 129 Wis. 190, 1906 Wisc. LEXIS 61

• Court: Wisconsin Supreme Court
• Decided: June 21, 1906
• Status: Published

Opinions

WiNsnow, J.

This is an action commenced in this court under the provisions of sec. 3200, Stats. 1898, to recover from the state the amount of an inheritance tax paid under protest pursuant to an order of the county court of Waukesha county. 'The complaint is based upon the ground that ch. 44, Laws of 1903, under which the tax was levied and paid, is unconstitutional. The attorney general interposed a general demurrer to the complaint, and thus the question of the constitutionality of the law is squarely presented.

A previous law attempting to tax inheritances and bequests (ch. 355, Laws of 1899) was before this court in the case of Black v. State, 113 Wis. 205, 89 N. W. 522, and was there held unconstitutional for the reason that it provided for unlawful discrimination, in that a beneficiary receiving a legacy or inheritance from an estate under $10,000 paid no tax, while a beneficiary standing in exactly the same relation to the decedent and receiving a legacy or inheritance of the same amoupt from an estate exceeding $10,000 was obliged to pay a tax. In that case it was not contended that an inheritance or succession tax could not lawfully be levied in this state. In fact, the validity of such legislation, as a general proposition, was conceded; but the contention was that the law in question made unlawful discriminations and hence was void. From this concession it resulted that this court assumed, rather than decided, in that case that an inheritance tax law making no unlawful discrimination between heirs .or beneficiaries could be passed in this state which would be constitutional. It was doubtless in response to the suggestions of the opinion in that case that ch. 44, Laws of 1903, which is now attacked, was passed.

Sec. 1 of the last-named law provides in substance that a tax shall be imposed upon any transfer of property or interest in property, real, personal, or mixed, to any person, association, or corporation (except corporations organized solely for religious, charitable, or educational purposes), when made by will or by operation of the intestate laws, or by transfer made by the grantor or by another person under a power of appointment in contemplation of death, to take effect at or after the death of the grantor, which tax shall be based upon the clear market value of such property at the rates therein-after prescribed, and only upon the excess over the exemptions thereinafter granted.

Sec. 2 provides that when the property or interest transferred exceeds the exemption and does not exceed $25,000' the tax shall be (1) one per cent, of the clear value where the person entitled to such property shall be the husband, wife, lineal issue, lineal ancestor of the decedent, or lawfully adopted or mutually recognized child of the decedent, or a descendant of such child; (2) one and one-half per cent, in case of the brother or sister of the decedent, or a descendant of such brother or sister, or the wife or widow of a son, or the-husband of a daughter, of the decedent; (3) three per cent, in case of the brother or sister of the father or mother of the decedent, or a descendant of such brother or sister; (4) four per cent, in case of the brother or sister of the grandfather or grandmother of the decedent, or a descendant of such brother or sister; (5) five per cent, in case of a beneficiary in any other degree of collateral consanguinity, or a stranger in blood, or a body politic or corporate. These rates are termed the primary rates.

See. 3 provides that when the value of the property exceeds $25,000 the rates of tax upon the excess shall be as follows: (1) Upon the excess over $25,000 up to $50,000, one and one-half times the primary rates; (2) from $50,000 to $100,000, two times; (3) from $100,000 to $500,000, two and one-half times; (4) upon all in excess of $500,000, three times the primary rates.

Sec. 4 provides for exemptions as follows: (1) All property transferred to domestic corporations organized solely for religious, charitable, or educational purposes and used exclusively for such purposes; (2) property of the value of $10,000 transferred to the widow, and property of the value of $2,000 transferred to each of the other persons named in the first division of sec. 2; (3) property of the value of $500 transferred to each of the persons named in the second division of sec. 2; (4) property of the value of $250 transferred to each of'the persons named in the third division of sec. 2; (5) property of the value of $150 transferred to each of the persons named in the fourth division of sec. 2; and (6) property of the value of $100 transferred to each of the persons or corporations named in the fifth division of sec. 2.

The remaining sections' contain full provisions for the administration of the law and the collection of the tax, which are not necessary to be stated here.

The constitutionality of this law, and of any similar law, is now attacked upon the following general grounds:

First: That the right to take property by inheritance or by will is a natural right protected by the constitution, which cannot be wholly taken away or substantially impaired by the legislature.

Second: That the constitution of this state limits the power of taxation to property only, and that this tax is an excise levied upon a right or privilege, and hence unconstitutional.

Third: That even if the legislature has power, under the constitution, to levy such a tax, this law violates the constitutional requirement that the rule of taxation shall be uniform.

I. With the first of these propositions we agree. We are fully aware that the contrary proposition has been stated by the great majority of the courts of this country, including the supreme court of the United States. . The unanimity with which it is stated is perhaps only equaled by the paucity of reasoning by which it is supported. In its simplest form it is thus stated: “The right to take property by devise or descent is the creature of the law and not a natural right.” Magoun v. Ill. T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594. In Eyre v. Jacob, 14 Grat. 422, it is stated more sweepingly thus:

“'It [the legislature] may tomorrow, if it pleases, absolutely repeal the statute of wills, and that of descents and distributions, and declare that, upon the death of a party, his property shall be applied to the payment of his debts and the residue appropriated to public uses.”

' But it has been reserved for the supreme court of North Carolina to sweep away all natural property rights in a few terse sentences, which may well be quoted:

“Property itself, as well as the succession to it, is the creature of positive law. The legislature declares what objects in nature may be held as property; it provides by what forms and on what conditions it may be transmitted from one person to another; it confines the right of inheriting to certain persons whom it defines heirs; and on the failure of such it takes the property to the state as an escheat. The right to give or take property is not one of those natural and inalienable rights which are supposed to precede all government and which no government can rightfully impair.” Pullen v. Comm'rs, 66 N. C. 361.

In this declaration the court of North Carolina seems to have easily reached the logical goal toward which the other cases only tend, namely, the denial of all natural rights of property. It comes perilously near the doctrine that might makes right,

“The simple plan That they should take who have the power, And they should keep who can.”

The fallácy of the idea that the government creates or withholds property rights at will is very apparent. Under our system the government is the creature of the people, the product of a social compact. The people, in full possession of liberty and property, come together and create a government to protect themselves, their liberty, and their property. The government which they create becomes their agent; the officers their servants. Under the theory of the North Carolina court these agents, in turn, create property rights and confer them upon their creators, who possessed these rights long before. The people create an agency to protect their existing rights which assumes to confer or withhold these same rights.

But the question is chiefly historical. From the historical standpoint the idea that all rights of property and rights to transmit the same by inheritance or will have their origin in the positive enactments of law by an established government cannot stand the test. Governments have, indeed, from the earliest times, regulated the exercise of these rights, prescribed ways and forms for their exercise, and protected them by positive law; and so they do now. From this universal exercise of the right of regulation the idea of governmental right to create and destroy may have arisen, but it seems more likely to have arisen from failure to keep in mind the radical difference between our republican theory of the origin of gov-eminent and tbe European medieval theory. ^Our theory is that the people, in full possession of inalienable rights, form the government to protect those rights./ The medieval idea was that the government was sent down from above, and that from it rights and privileges were allowed to flow in gracious streams to ’the people, who otherwise would not possess them.

That there are inherent rights existing in the people prior to the making of any of our constitutions is a fact recognized and declared by the Declaration of Independence, and by substantially every state constitution. Our own constitution says in its very first article:

“All men are born equally free and independent and have certain inherent rights; among these are life, liberty, and the pursuit of happiness; to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.”

Notice the language, “to secure these [inherent] rights governments are instituted;” not to manufacture new rights or to confer them on its citizens, but to conserve and secure to its citizens the exercise of pre-existing rights. It is true that the inherent rights here referred to are not defined but are included under the very general terms of “life, liberty, and the pursuit of happiness.” It ds relatively easy to define “life and liberty,” but it is apparent that the térm “pursuit of happiness” is a very comprehensive expression which covers a broad field. Unquestionably this expression covers the idea of the acquisition.of private property; not that the possession of property is the supreme good, but that there is planted in the brea'st of every person the desire to possess something useful or something pleasing which will serve to render life enjoyable, which shall be his very own, and which he may dispose of as he chooses, or leave to his children or his dependents at his decease. To deny that there is such universal desire, or to deny that the fulfilment of this desire contributes in a large degree to the attainment of human happiness, is to deny a fact as patent as tbe shining of the sun at noonday. And so we find that, however far we penetrate into the history of the remote past, this idea of the acquisition and undisturbed possession of private property has been the controlling idea of the race, the supposed goal of earthly happiness. Erom this idea has sprung every industry, to preserve it governments have been formed, and its development has been coincident with the development of civilization. And so we also find that from the very earliest times men have been acquiring property, protecting it by their own strong arm if necessary, and leaving it for the enjoyment of their descendants; and we find also that the right of the descendants, or some of them, to succeed to the ownership has been recognized from the dawn of human history. The birthright of the firstborn existed long before Esau sold his right to the wily Jacob, and the Mosaic law fairly bristles with provisions recognizing the right of inheritance as then long existing, and regulating its details. The most ancient known codes recognize it as a right already existing, and Justice BeowN was clearly right when he said, in U. S. v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073:

- “The general consent of the most enlightened nations has from the earliest historical period recognized a natural right in children to inherit the property of their parents.”

The existence of the right to dispose of property by will in the earliest times is not so easy of proof. Nevertheless it seems there can be no doubt of the fact. The biblical writings show the exercise of the right from the times of Abraham, and Mr. Schouler in his work on Wills (2d ed.) § 13, says that history “confirms the opinion that the practice of allowing the owner of property to direct its destination after his death, or at least of imposing general rules of inheritance, is coeval with civilization itself, and so close, in fact, upon the origin of property and property rights as not to be essentially separated in point of antiquity.” The laws of Solon allowed the willing of personal property in Athens, and the laws of the Twelve Tables in Rome. In England the right of testamentary disposition of personal and real property, or at least a part of it, was recognized from the very earliest times, but lands could not be willed after the Norman invasion and the establishment of feudal tenures until Stat. 32 Henry VIII, ch. 1, §§ 1-5. Cassoday, Wills, § 31 et seq.; 30 Am. & Eng. Ency. of Law (2d ed.)' 549.

So clear does it seem to us from the historical point of view that the right to take property by inheritance or will has existed in some form among civilized nations from the time when the memory of man runneth not to the contrary, and so conclusive seems the argument that these rights are a part of the inherent rights which governments, under our conception, are established to conserve, that we f<3el entirely justified in rejecting the dictum so frequently asserted by such a vast array of courts that these rights are purely statutory and maybe wholly taken away by the legislature.

It is true that these rights are subject to reasonable regulation by the legislature; lines of descent may be prescribed,, the persons who can take as heirs or devisees may be limited, collateral relatives may doubtless be included or cut off, the manner of the execution of wills may be prescribed, and there-■may be much room for legislative action in determining how much property shall be exempted entirely from the power to-will, so that dependents may not be entirely cut off. These are all matters within the field of regulation. The fact that these powers exist and have been universally exercised affords no ground for claiming that the legislature may abolish both inheritances and wills, turn every fee-simple title into a mere estate for life, and thus, in effect, confiscate the property off the people once every generation.

But, while we utterly reject the doctrine of Eyre v. Jacob,. 14 Grat. 422, and hold that the right to demand that property pass by inheritance or will is an inherent right subject. only to reasonable regulation by tbe legislature, we are not thereby brought to the conclusion that inheritance or succession taxes cannot be levied. They do not depend upon the right to confiscate. We agree entirely with the ideas expressed by the supreme court of Massachusetts in Minot v. Winthrop, 162 Mass. 113, 38 N. E. 512, where it is said:

“We assume that under the constitution this (i. e. the taking of a'll property by the state on the death of the owner) cannot be done either directly or indirectly; that the legislature cannot so far restrict the right to transmit property by will or by descent as to amount to an appropriation of property generally; that it cannot impose a tax which shall be equivalent or almost equivalent to the value of the property,, and cannot so limit the persons who can take as heirs, dev-isees, distributees, or legatees that the great mass of all the-,property of the inhabitants must become vested in the commonwealth by escheat. The state can take property by taxation only for the public service, and we assume that its right to take property, if any exists, by regulating the distribution of it on the death of the owner is limited in the same manner, and that this right must be exercised in a reasonable way.”

Inheritance or succession taxes are very ancient and are said to have had their origin in the Roman, law. They have long been in force in the European states, and in England and her colonies, where they are known as “death duties.”' They may be fully justified under the power of regulation and taxation of transfers of property. No one doubts for a moment that a government may levy a tax upon transfers, of land or upon business transactions; it is done by the federal government in this country whenever additional and extraordinary revenues are needed, in the form of stamp duties. These taxes are not based upon the power to interdict or prohibit such transactions, but upon the power to reasonably regulate and tax them. Succession or inheritance taxes may well be sustained upon the same principle; not upon the power to prohibit, but upon the power to reasonably regulate and tax. This power existed when our state government was formed. It entered into and modified the inherent right to possess, transmit, and will property, at the time the constitution was adopted, so that the inherent right recognized and preserved by the constitution was and is a right subject to reasonable regulation and taxation.

So we arrive at the conclusion that the general principle of inheritance taxation may be justified under the power of reasonable regulation and taxation of transfers of property, and we pass to the second contention.

II. This contention is that by sec. 1 of art. VIII of the constitution taxes can only be levied on property. This provision is the only general provision of the constitution upon the subject and reads as follows: “The rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe.” The argument is that this provision, by the rule of expressio unius est exclusio alieri/us, prohibits the levy of any taxes in this state except taxes upon property, and that as inheritance taxes are held to be excise taxes upon the right to take property and not taxes upon property they cannot be levied in this state. It must be admitted that, by the absolutely uniform current of decision in this country, inheritance taxes are not taxes upon property, but upon the right to receive property. It would not be useful to cite the cases which hold this doctrine; they will be found quite fully cited and tabulated in 27 Am. & Eng. Ency. of Law. (2d ed.) 338, note 5. This court has announced the same doctrine in State ex rel. Sanderson v. Mann, 76 Wis. 469, 45 N. W. 526, 46 N. W. 51, and Black v. State, 113 Wis. 205, 89 N. W. 522, and it cannot be considered as open to doubt. So we meet the question whether any taxes other than taxes upon property can be constitutionally levied in Wisconsin. It seems strange that, notwithstanding the lapse of nearly three score years since the adoption of the constitution, this question has never been authoritatively decided in Wisconsin, yet such is the undoubted fact. The clause bas been considered and tbe question approached in numerous cases. Laws imposing license taxes upon bawkers and peddlers, upon the keeping of dogs, the sale of liquors, and upon insurance agents and insurance companies have been sustained under the police power. Morrill v. State, 38 Wis. 428; Tenney v. Lenz, 16 Wis. 566; State ex rel. Henshall v. Ludington, 83 Wis. 107; Fire Department v. Helfenstein, 16 Wis. 136; Travelers’ Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407. Poll taxes for highway repair purposes have been uniformly levied and never questioned, but these also may perhaps be sustained under the police power. 1 Cooley, Taxation (3d ed.) 16. Eailroad license taxation has been sustained upon grounds more fully considered later. In the course of the discussion upon this latter form of taxation in Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 37, 8 N. W. 883, it was said on page 95 (8 N. W. 855) “Accordingly taxes can only be levied upon such property as the legislature shall prescribe, and then only by a uniform rule;” but the question at issue in that case was simply a question of exemption of property from taxation, and the sentence quoted unquestionably referred to property taxation and was not intended to lay down the principle that property taxation was the only taxation possible under the constitution. In Black v. State, 113 Wis. 205, 89 N. W. 522, as we have seen, it was assumed by reason of the admission of counsel that inheritance taxes might legally be levied in this state, and hence the statement in State v. Whitcom, 122 Wis. 110, 99 N. W. 468, that the question whether taxes other than taxes upon property are forbidden by our constitution was one not then authoritatively decided is strictly correct. The most that can be said is that there are intimations in both directions, and that the intimations that taxation upon anything except property is forbidden are the more numerous.

In approaching the question we start with the familiar proposition that the legislature has all the usual and neces■sary governmental powers, including the power to levy taxes upon occupations, privileges, franchises, and the like, as well as upon property, unless such power has been taken away by the constitution. There are no express words in the constitution limiting taxation to property taxation, but the question is whether sec. 1 of art. VIII, above quoted, has the effect of ■such a limitation under the 'familiar rule of construction, ex-pressio unius est exclusio alterius. If we were compelled to decide this question upon the bare words themselves, without •the help of the debates occurring in the constitutional convention when this section was formulated, and without the help of subsequent practical construction, the argument would be strong in favor of the plaintiff’s contention. But we have a brief record of the constitutional debates, and we have fifty years of practical construction since the adoption of the constitution, and both must be considered.

Turning to the printed journal'of the second constitutional convention, we find on page 113 that the committee on general provisions, of which Byron Kilbourn was chairman, on December 30, 1847, reported to the convention the article on '“Finance,?’ of which the first two sections were as follows:

“(1) All taxes levied in this state shall be as nearly equal ■as may be.

“(2) The property of the state and counties, both real and personal, and such property as the legislature shall deem proper, belonging to educational, charitable, or religious institutions, or set apart for such purposes, shall be exempted from taxation.”

This article was taken up and considered in committee- of the whole at the afternoon session on January 4, 1848, and Mr. Whiton moved to amend by striking out the whole of ■sec. 2, and made some remarks in support of the motion. (It appears by the preface that Mr. Whiton requested that his remarks be not reported, so we unfortunately are deprived of the aid which might well be expected from the remarks of that eminent lawyer and statesman, wbo was afterwards chief justice of this court.) The journal then proceeds as follows (p. 195) :

“Mr. Kilbourn said this subject bad been elaborately discussed in the committee, and they bad arrived at tbe conclusion expressed in the article. The attention of the committee had been called to the subject by one of its members, and the question raised whether it was necessary to declare that the property of the state should not be taxed. It was evident that the state could derive no advantage from taxing its own ■property; but the counties might derive a revenue by taxing the property of the state. Eor instance, the county of Dane might levy a tax upon the capitol, if no such prohibition as was contained in this section existed. The first section provided that all taxes within the state should be as nearly equal as may be. This provision would require that all the property in the state should be taxed equally, not the property of A., B., and C. merely, but all the property in the state, which would include the property of the state, and without the restriction in the second section it was supposed that the legislature could not restrict the counties from taxing it.

“Mr. Whiton modified his motion so as to amend the section by exempting the property of counties; which amendment prevailed.

“Mr. Eountree offered an amendment as a new section providing that all taxes should be by assessment of the value of the property taxed, excepting pedlars, hawkers, ferries, etc., and giving the legislature power to tax those separately.

“Mr. Kilbourn would like to hear some reasons from the gentleman from Grant, in favor of the section he had proposed. It seemed to him very much like entering into the ■details of legislation. If they were to specify the kinds of property to be taxed and the precise mode of taxation, they should begin with real estate and go through with an enumeration of every species of property to be taxed and the mode ■of taxing it. He thought the first section was sufficient upon that subject. It was simple and concise, and covered the whole ground.

“Mr. Eountree thought the first section did not cover the •whole ground. He wished to have the legislature bound by some rules which'would secure equal taxation, some rules which would require that taxation should be based upon some fair valuation of the property taxed, and not left to tax property coming under the sáme general denomination equally, while the value might be very different. He considered it a matter of very great importance. Our present laws did not secure a just and equitable valuation of property as the rule of taxation, and it was this kind of partiality and favoritism extended to particular kinds of property which he wished to see prohibited by the constitution. If gentlemen expected to get a good constitution without having anything in it, they would find themselves mistaken in the end. He wanted a constitution which common people could understand, and not one which no one could understand without going to a lawyer, or to those who made it a business to tell them what it meant.

“Mr. Chase could not see for his life what force or effect the section would have if placed in the constitution, for the legislature would have the same power without it as with it. He agreed with the gentleman from Grant that the value of the property should be the basis of taxation, but it seemed to him that the gentleman was going against his own principle in providing for the taxation of pedlars, hawkers, and jugglers, for he could not understand what kind' of property they were. He thought they could not be regarded as things of much value, and for his own part he considered them rather as nuisances than, otherwise.

“Mr. Doran moved to amend section second so as to exempt from taxation the property of towns, cities, and the wards of. cities.

“Mr. Lovell suggested to the gentleman from Milwaukee a modification of his amendment so as to exempt generally the property of municipal corporations.

“Mr. Doran declined so to modify his motion. The terms-'municipal corporations’ applied only to corporations possessed of legislative powers, and did not cover the ground which he wished to cover. He wished the exemption to apply to bodies corporate, which were not always municipal corporations. The several wards in the city of Milwaukee possessed separate property which he thought should be exempted from taxation, and yet they were not, in themselves,, municipal corporations.

“Mr. Chase would inquire for what purposes tRose 'wards Reid tReir separate property. If Reid for educational purposes, it was already exempted Ry the section with all otRer property Reid for the same purpose. If it were Reid for charitable purposes, it was already exempted with all other property Reid for the same purpose. If it were Reid for any purpose for which it ought to be exempted, it was already exempted by the general provisions for that purpose, and if it were Reid for purposes of speculation it ought to be taxed.

“Mr. Kilbourn explained that the several wards own fire engines and engine Rouses, public grounds, markets, and market Rouses, which, although not devoted to either charitable or educational purposes, were public property, and should be exempt from taxation.

“The amendment was adopted.

“Mr. WRiton moved to amend the first section by adding the words 'and shall be levied upon such property as the legislature shall prescribe.’

“Mr. Chase said the amendment proposed by the gentleman from Rock would improve the section, but it would im- . prove it still more if he would include in his amendment a proposition to strike out the words 'may be,’ in the first line, and insert the word 'practicable,’ so that it would read 'all taxes in this state shall be as nearly equal as practicable/ The words 'may be’ covered all sorts of amendments, and, as they stood in the section, they had no meaning at all.. The section might as well have read, 'All taxes in this state may be as nearly equal as they shall beThey shall be as they may be, or they may be as they shall be, and this was all the, sense there was attached to the words.

“Mr. "Whiton’s amendment was adopted, when

“Mr. Chase moved the amendment of which he had just spoken, and it was adopted.

“Mr. Cotton moved to strike out the second section. •

“Mr. Judd would like to have some reason for striking out the section after all the trouble they had had in amending it. He read the several provisions it contained and commented briefly on the importance of each. He approved of every one of its provisions, and hoped it would not be stricken out.

“Mr. Kilbourn thought the section could do no harm and might do some good. It recognized the principle which the legislature should adhere to in exempting property from taxation. If stricken out, the very history of that fact might be ■construed as discountenancing the principle.

“Mr. Lovell hoped the section woiild^be stricken out for the reason that it did no good, for he believed that, in an instrument of this nature, whatever did no good must necessarily ■do harm. If it did no other harm, it would embarrass the ■discretion conferred upon the legislature by the first section ■as amended.

“The motion to strike out was agreed to.

“Mr. Whiton moved to strike out the first line of the first section to the word ‘practicable,’ inclusive, and insert

“ ‘The rule of taxation shall be uniform throughout this state.’

■“Which was adopted.

“Mr. Doran moved to insert a section as section second, providing that the property of the state, and of counties, towns, cities, and wards of cities, and all property held for educational or charitable purposes, should be exempt from taxation.

“Mr. Ohase thought this the same section in substance as the one stricken out.

“Mr. Doran said the gentleman from Pond du Lac was mistaken. The section stricken out allowed the legislature a discretionary power, while the section he had proposed was imperative in respect to property devoted to educational or charitable purposes.

“Mr. Chase was still more convinced of the impropriety ■of adopting this section. Who was to determine what was a •charitable purpose and what was not ? He might regard some ■objects as charitable objects, in respect to which but very few members of the convention would agree with him. Again, if they attempted to specify in the constitution what kinds of property should be exempt from taxation, they should make the specification complete and enumerate every kind of property which should be exempt.

“Mr. Lovell wished to state an objection to the proposed section which he did not recollect to have heard alluded to in the course of the debate. Such were the established rules of ■construction with reference to constitutional provisions, that, i-f the constitution made certain exemptions, it would operate as a prohibition upon the legislature to make any other or further exemptions. If, therefore, the proposed section should he adopted, it would malee an end of all legislation on that •subject. The legislature would have no power to exempt •any other property from taxation, whatever might be the necessity for and propriety of such exemption.

“The amendment was rejected, and the article laid aside to be reported. . . .”

It is somewhat singular that the amendment or new section offered by Mr. Eountree in place of sec. 2 was not inserted in full in the journal. It appears in full in the account of the proceedings published in the Wisconsin Democrat of January 5, 1848, doubtless prepared by one of the ••same reporters, and is as follows:

“Sec. 2. The legislature shall provide for levying a tax by valuation, so that every person and corporation shall pay .a tax in proportion to the value of his or her property, sucia value to be ascertained by some person or persons to be selected in such manner as the legislature shall provide by law, but the legislature shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, .showmen, jugglers, innkeepers, grocery keepers, toll bridges and ferries, and persons using and exercising franchises and privileges, in such manner as they shall from time tó time prescribe by law.”

It further appears from the journal, on page 202, that the report of the committee of the whole upon the article on Ei-nance was taken up by the convention on January 5 th, and the following proceedings were had:

“Eo. 10. Article on ‘Finance;’

“Was then taken up,

“And, the question being on concurring in the first amendment of the committee of the whole, which was, ‘strike out the first section,’ and in lieu thereof as follows:

“ ‘The rule of taxation shall be uniform throughout this state, and taxes shall be levied upon such property as the legislature shall prescribe.’

“Mr. Jndcl moved to amend tire amendment by inserting the following as sections 1 and 2:

“ ‘Sec. 1. All taxes levied in this state shall be uniform and equal; and shall be assessed upon a just valuation of real and personal property.

“ ‘Sec. 2. The property of the state, property of any common school, university, college, or seminary of learning, all houses erected for and dedicated to the public worship of God, and the lots which they necessarily occupy for such purpose, and all public burying grounds and such other property as the legislature shall prescribe by la.w, shall be free from taxation.’

“And the question being put upon the adoption of the same,

“It was decided in the negative.

“The first amendment of the committee was then concurred in.” j

Upon page 205 of the journal it appears that Mr. Judd again moved to amend the article by inserting the following as sec. 2:

“The property of the state, property of any common school, university, college, or seminary of learning, all houses erected for and dedicated to the public worship of God, and the lots which they necessarily occupy for such purpose, and such other property as the -legislature shall prescribe by law, shall be free from taxation.”

This motion was followed by a debate upon the advisability of naming specific exemptions, participated in by Messrs. Ohase, Lovell, Richardson, Rilbourn, Whiton, and Judd, and the motion was rejected by a vote of 42 to 17.

It appears, by the newspaper report contained in the newspaper before mentioned, that Mr. Richardson also proposed to amend by striking out the section reported by the committee and inserting the following:

“Sec. 1. All taxes to be levied in this state shall be levied upon all property, both real and personal, according to valuation.

“Sec. 2. Property belonging to the state, educational, charitable or religious institutions, or set apart for such purposes, and such, other property as the legislature shall deem proper, shall he exempted from taxation, anything contained in the first section of this article to the contrary notwithstanding.”

But the amendment was rejected.

It further appears from the newspaper report that Mr. Yanderpool proposed the following as see. 2:

“The legislature shall determine by law what property shall he exempt from taxation, and all other property, both real and personal, shall he taxed according to its valuation.”

But the- amendment was ruled out of order. Neither of these last two proposed amendments is mentioned in the journal. The article was then ordered to he engrossed.

It further appears hy the journal, on pages 465 and 466, that the committee on revision and arrangement recommended to strike from sec. 1 the words “throughout the state,” which was agreed to, and the section was finally incorporated in the constitution as it now stands, viz., “The rule of taxation shall be uniform, and taxes shall he levied on such property as the legislature shall prescribe.”

Examination of this brief record brings out several rather remarkable facts: Eirst, the debate in the committee of the whole upon this very important clause of the constitution, and as a result of which its terms were settled, occupied only a part of a single half-day’s session; second, that debate, as well as the short debate which occurred on the following day on the floor of the convention upon Mr. Judd’s amendment, was devoted wholly to the question of the exemption of property from taxation and the relative advisability of specifying in the constitution what property should be exempt, or of leaving the whole subject to the legislature in a general phrase; third, Mr. Rountree’s amendment providing specially for the taxation of occupations and franchises was rejected, not for the reason that it was desired to deny the legislature power to levy such taxes, but because, as expressed by Mr. Xilbourn, it was going into the details of legislation, and, as expressed by Mr. Olíase, tbe legislature would have tbe same power without it as with it, and to these views there was no-dissent; fourth, if by this clause the legislature intended to limit taxation to property alone they did so without debate and apparently without a word upon the subject either pro or con.

There were eminent lawyers in that convention. Mr. Lov-ell and Mr. Whiton were the peers of any iii the territory at that time, even if we could name no others. They knew, and undoubtedly many others knew, that excise taxation was a valuable and widely used form of the taxing power; yet if we adopt the view contended for by the plaintiff we must say that they deliberately deprived the state of this most effective and useful arm of the taxing power after a debate of an hour or two devoted solely to the subject of exemptions from property taxation. This conclusion is startling, to say the least. It can only be reached by arbitrary application of the rule of expressio unius, and this rule, like all other mere rules of construction applied to ambiguous words, yields to proof of surrounding facts and circumstances which satisfactorily demonstrates that the meaning intended by the parties was different.

But we are not dependent upon the proceedings of the convention aloné in our effort to properly interpret this clause. History has been made since then. Practical construction has been given to the taxing power of the government for more than half a century. Has the state confined itself to property taxation, or has it levied excise taxes in addition ? This question brings us to the consideration of the true nature of .the railroad license taxation system, which was in use in this state from 1860 to 1903, a history of which will be found in ;the opinion in the case of State v. Railway Cos. 128 Wis. 449, 108 N. W. 594. The first attempt to tax railroads was made by ch. 74, Laws of 1854, which provided for the payment by railroads of one per cent, of their gross earnings for the previous year in lieu of all taxes, and authorized a levy upon the property and franchises of the company and sale of the same in default of payment. The constitutionality of this act was attacked in the case of Milwaukee & M. R. Co. v. Waukesha Co. 9 Wis. 431, 449, in the year 1855. Judge Hubbell, upon the circuit bench, upheld the law oh the ground that the same provided, not for a tax, but for the payment of a bonus or compensation by the company for the exemption of its property from taxation. The case came to this court and was ably argued by E. G. Ryan for the appellants and Einch & Lynde for the respondent. The law was sustained, but unfortunately no formal opinion was written, and the case was not officially reported for some years. In 1859 the case of Knowlton v. Rock Co. 9 Wis. 410, came before this court, involving the question of the validity of a law requiring farming lands within the limits of a city to be taxed at a different rate from property within recorded plats, and it was held that property could not be so classified. Reference was made in the opinion to the case of Milwaukee & M. R. Co. v. Waukesha Co., supra, and the statement made that it was there determined that no question of the exercise of the taxing power was involved in it. At this time Judge Dixon was chief justice and Judges Cole and Paine were associate justices, while in 1855 the bench was composed of Justices Whiton, Smith, and Cole. Judge Smith, however, was still the official reporter in 1859, and in reporting the Knowlion Case, supra, he inserted as a note a full report of the Milwaukee & M. R. Co. Case, with his memorandum of the decision in that case, which it appears was prepared at the time the case was decided with the idea that a formal opinion should be written later, which for some reason was never done. This report of the case appears at page 431 of the original edition of 9 Wis. (Vilas & Bryant ed. 399), and the memorandum appears on page 449 of the original edition. From this memorandum we learn (1) that it was held that the act did not violate the clause requiring uniform taxation providing all railroad property is alike taxed or alike exempt; (2) that the court thought the law did not impose a tax within the meaning of the constitutional provisions, and hence was valid.

At the January term, 1860, however, the direct question again came up whether the railroad taxation law of 1854 was constitutional, in the case of State ex rel. Att’y Gen. v. Winnebago L. & F. R. P. R. Co. 11 Wis. 35, and it was held (Justice Cole dissenting) that it provided for a tax on property, and transgressed the rule of uniformity, and hence was unconstitutional. In this case reference was again made to the Milwaukee & M. R. Co. Case, “in which there was never any opinion written,” and it was distinctly overruled against Judge Cole’s protest. In this case the opinion takes up and treats the claim that the exaction is a license fee and not a tax, and rejects it for various reasons, among which were that it was directly called a tax in the title of the act, that it provided for no license, that it did not pretend to grant any authority or privilege to do any act, and hence did not perform the functions of a license law. This decision was made at the January term, 1860, and evidently threw tire financial systems of the state and municipalities into great disorder. The legislature at once passed chs. 173 and 174, Laws of 1860; the first-named chapter exempting all railroad property from taxation, and the last-named chapter providing for taxation of railroads by the license system. In these acts the attempt of the legislature to follow the suggestions of the court in the Plank Road Case (11 Wis. 35) and make a law which should, in fact, be a license law is very manifest. Every reason suggested in that case why the law of 1854 could not be considered a license law was observed, and an attempt made to obviate it. But the question would not down. It was presented again in Kneeland v. Milwaukee, 15 Wis. 454, in 1862, when the extent of the financial ruin and governmental paralysis resulting from the holding in the Planlc Road Gase was evident on every hand. The court in this case, after affirming the Plank Poad Gase upon the first argument, entertained a motion for rehearing, and while Justices Dixon and Paine remained of the same opinion upon the merits they finally agreed in overruling their former decision and returning to the decision in the Milwaukee & M. R. Co. •Gase} on the ground of stare decisis. So the law was settled in this state that the act of 1854 was constitutional.

. The only thing that can be said to have remained doubtful was the question as to what ground or grounds the decision in the Milwaukee & M. R. Co. Gase went on. According to Judge Smith’s memorandum, the only contemporaneous written evidence which we have, it went upon two grounds: (1) That if a tax, it did not violate the rule of uniformity because all railroad property was treated alike, and (2) because the court did not deem it a tax within the constitutional provisions (i. e. sec. 1 of art. VIII of the constitution). This second proposition can only mean that it was not a tax upon property. According to Judge Cole it was not decided that the law did not impose a tax, but Justice Paine in the final opinion in the Kneeland Gase treated this difference of opinion as, in fact, immaterial, and said that •all that it was necessary to know was that it was held that, if it was a tax, it was no violation of the rule of uniformity, and that the law was held to be no violation of the constitution. It is not very surprising that Judge Cole’s recollection should not agree with the written memorandum. Doubtless the discussion in the consultation room took a wide range, and all know how rare it is that two persons will remember a long conversation or consultation alike. Both Versions may be practically harmonized on this theory, namely, that it was held not to amount to a property tax under sec. 1 of art. VIII of the constitution, as Judge Smith says, but ivas held to be an exercise of the inherent taxing power of the state. Judge Smith’s memorandum nowhere negatives this theory, hut rather tends to support it, while this also justifies Judge Cole’s statement that it was not held that the law did not impose a tax. IToweAer this may he, it would seem that the-question is authoritatively settled in the case of Wis. Cent.. R. Co. v. Taylor Co. 52 Wis. 37, 8 N. W. 833, where it was held, after an historical review of the cases in an opinion by the present chief justice, that “the decision of this court in: the case of Milwaukee & M. R. Co. v. Waukesha Co. 9 Wis. 449, appears to he eminently sound on all points involved, and all contained in subsequent opinions inconsistent therewith is hereby disapproved.” Just what is meant by “all points involved” may not be entirely certain, although it. would seem to refer to the points named in the memorandum of the decision made by Judge Smith ; but there can be little doubt as to what is meant by the phrase “all contained in subsequent opinions inconsistent therewith.” The positions-which Justices Dixon and Paiwe took in the Plank Road Case (11 Wis. 35) which were inconsistent with the Milwaukee & M. B. Co. Case and upon which the latter case was. overruled were that the railroad tax was a tax upon property,, and* that hence it was void because not uniform under sec. 1 of art. VIII, and these positions are certainly disapproved by the Taylor County Case. So we regard it as settled by the necessary effect of the decisions named that the railroad tax legislation of 1854, and a fortiori the railroad license legislation of 1860 and of following years, while imposing a tax in the proper sense, did not impose a tax upon property within the meaning of sec. 1 of art. VIII of the constitution,, but was in fact excise taxation upon the privilege of transacting business.

But were it conceded that this is not a correct deduction-from the decisions cited, and that the only thing settled by them is that the tax is constitutional on some ground not stated, it is impossible for us to see how railway license taxation, such as has been in force since the acts of 1860 np to the' year 1903, can, in any event, be logically held to be taxation of property. The entire property of the railroad company is exempted from taxation by specific provision of law. How-can it be said to be taxed when the law makes it exempt from taxation? A railroad company might have much property iñ this state, but if it chose at any time to cease to operate its railroad, for any reason, it could not be compelled to pay the license fee, because the fee is only exacted of a person or' company “operating” a railroad as a condition of the issuance of a license giving it the privilege to operate its road for the ensuing year. The license fee is paid for the privilege of' doing its business. It is strictly a privilege or occupation tax. 2 Cooley, Taxation (3d ed.) ch. 18.

It is matter of history that this occupation or privilege tax has been continuously levied by the state unchallenged since the decision of the Kneeland Case, supra, up to the passage of ch. 315, Laws of 1903, and that a very large part of the revenues of the state have been derived therefrom. But, not only this, the same system of taxation by license of "business and exemption of property has from time to time been extended to other fields of taxation, until at the present, time the property of street railway companies, electric light and power companies, telegraph companies, and telephone companies is and has been for years exempt from taxation, and they have been required to pay an occupation tax or fee, under the license system, for the privilege of transacting their business.

Furthermore, the whole system of licensing domestic insurance companies to transact their business, so far as it is resorted to for the mere purpose of revenue (and it is very evident from the large sums annually collected that revenue as well as regulation is its object), must be justified, if justified at all, as an excise or occupation tax. In the case of foreign companies these license charges may be justified under the police power and the right of the state to impose any conditions on foreign corporations before allowing’ them to do business in this state, as in Travelers’ Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407, but in case of domestic corporations, where a license fee is exacted which manifestly greatly exceeds the cost of supervision or regulation of the business, the exaction must be justified, if justified at all, under the power of taxation. Wisconsin Tel. Co. v. Milwaukee, 126 Wis. 1, 104 N. W. 1009; Cooley, Const. Lim. (7th ed.) 713.

Thus it seems to us quite certain that the decisions of this court, as well as a half century’s practical construction, reinforce the conclusion so strongly suggested by the constitutional debates, namely, that sec. 1 of art. VIII is a section governing the taxation of property alone, and not intended to prohibit the taxation of privileges or occupations; that it really means, as held in the Taylor County Case (52 Wis. 37) at page 92 (8 N. W. 854), “Taxes shall be levied upon such property as the legislature shall prescribe by a uniform rule,” or “the rule of taxation shall be uniform upon such property as the legislature shall prescribe;” that, so far as the taxation of property is concerned, there can be no classification which will interfere with substantial and practical uniformity of rate (Chicago & N. W. R. Co. v. State, 128 Wis. 553, 108 N. W. 557), and that the clause “the rule of taxation shall be uniform,” if applicable to excise taxation at all, means no more than the general equality clauses of the constitution, or “the equal protection of the laws” guaranteed by the XIVth amendment. Taxation of privileges and occupations manifestly cannot be uniform in the sense in which property taxation may be uniform. Property may be all reduced to its money value and a uniform rate levied upon it all; but when occupations, privileges, or property transfers are to be taxed there is no common ground upon which they can meet, no standard by which their relative value or worth can be measured or compared; and bence uniformity of taxation or even equality of taxation, as applied to excise taxes, must necessarily mean taxation wbicb does not discriminate, but wbicb operates alike on all persons similarly situated. In other words, proper classification may be made and a different rate applied to eacb class. 1 Cooley, Taxation (3d ed.) 72, 73; State v. Applegarth, 81 Md. 293, 31 Atl. 961; Tiedeman, Lim. of Police Power, 282.

III. These considerations bring us to the third point of the argument, and, in fact, partly answer it, namely, the objection that the tax here in question violates the rule of uniformity. That rule, as applied to excise taxation, meaning simply that there shall be no unjust discrimination, the sole re-, maining question under this contention is whether the present law violates the true principles of classification. It was said in the Black Case (113 Wis. 205, 89 N. W. 522) that “classification between lineals and collateral relatives and strangers does not violate the rule of uniformity nor the principle of equal protection of the laws; and that reasonable exemption of small estates also may be allowed without violating uniformity.” ' While the admissions made by counsel in the Blade Case tend to deprive this expression of weight as an authority, the arguments in the present case aided by our own investigations have convinced us that the conclusions are correct and sanctioned by the great weight of authority. In order to justify classification there must, of course, be substantial and real differences of situation calling for or reasonably suggesting the necessity for' different treatment. That a wife or daughter deprived by death of the care and support of her natural protector stands in substantially a different position from a collateral relative, and that her situation justifies different treatment, goes almost without saying, and that a collateral relative stands in a substantially different position from a mere stranger seems reasonably clear, although in less degree. The authorities are quite unanimous in justifying substantially tbe classification wbicb is embodied in tbe law, and tbe supreme court of tbe United States bas approved of it in numerous decisions, notable among wbicb is Magoun v. Ill. T. & S. Bank, 170 U. S. 283, 18 Sup. Ct. 594. In view of our construction of sec. 1, art. VIII, of our constitution, by which we bold that it applies simply to property taxation, tbe question seems to be free from reasonable doubt.

Tbe progressive featule of tbe act involves greater difficulty. By this feature increased rates of taxation are imposed as tbe amount of tbe bequest increases. Thus, if one legatee receives $25,000 and another in tbe same degree of kinship receives $50,000, while they will both pay tbe same rate on $25,000, tbe second legatee will pay a higher rate on bis second $25,000. It is said that this is rank discrimination, that there is no difference in situation justifying a difference in classification, and that classification of persons cannot be based on mere differences in ability to pay. If this question were an original one it would seem serious. It is somewhat persuasive to note that railroad license taxes have been levied upon tbe progressive plan, increasing as tbe earnings per mile increase, since 1876 without question, and that street railroads and electric lighting companies are now subject to a like progressive rate of taxation. Stats. 1898, secs. 1213, 1222& This fact would not, of course, be conclusive. Tbe question bas, however, been met in other courts, and it bas been held with substantial uniformity that tbe progressive feature does not violate tbe general guaranties of equality and equal protection of tbe laws contained in tbe various state constitutions and in tbe XIVtb amendment to tbe constitution of tbe United States. Magoun v. Ill. T. & S. Bank, supra; Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747; Kochersperger v. Drake, 167 Ill. 122, 47 N. E. 321. Tbe decision of tbe supreme court of tbe United States as to tbe force of tbe XIVtb amendment is necessarily conclusive, and as tbe general equality guaranties of our own constitution •are substantially tbe equivalent of tbe equal protection of tbe laws guaranteed by tbe XIVtb amendment, we are content to follow tbe decisions of tbe United States supreme court, and bold that tbe progressive feature does not violate tbe constitution.

Two minor contentions are made wliicb we deem untenable. Tbe first is that tbe law imposes a state tax, and violates sec. 5 of art. VIII of tbe constitution, which declares that “tbe legislature shall provide for an annual tax sufficient to defray tbe expenses for each year, and whenever tbe expenses for any year shall exceed tbe income, tbe legislature shall provide for levying a tax for tbe ensuing year sufficient with other sources of income to pay tbe deficiency as well as tbe estimated expenses of such ensuing year.” It seems sufficient to say with regard to this contention that tbe section relied upon’expressly recognizes tbe fact that tbe state may liave other sources of income aside from a direct tax upon property, and tbe section quoted is simply intended as a .regulation or provision covering tbe levying of a direct tax upon property, if such a tax be necessary.

Tbe second contention is that tbe act is unconstitutional because it commits certain matters concerning tbe administration of tbe law, such as tbe fixing of tbe value of tbe property inherited or bequeathed-and tbe amount of tbe tax, to tbe county court, and these are said to be administrative, not judicial duties. Tbe argument does not ajipeal to us. Tbe law fixes theYax; tbe court, as an incident in tbe settlement of the estate, simply determines, in a judicial way, certain facts necessary to be ascertained to determine bow much tbe tax fixed by law amounts to in a given case. These duties seem to us as judicial in their character, and very properly intrusted to tbe county court in which tbe estate is being administered.

By the Oourt. — The demurrer is sustained and judgment ■dismissing tbe complaint ordered, with $25 attorney’s fees ;and necessary disbursements, to be taxed.