Crawford v. Linn County

• Decision Date: 23 January 1885
• Citation: 5 P. 738,11 Or. 482
• Parties: CRAWFORD v. LINN CO.
• Court: Oregon Supreme Court

5 P. 738

11 Or. 482

CRAWFORD v. LINN CO.

Supreme Court of Oregon

January 23, 1885

Appeal from Linn county.

Charles E. Wolverton, for appellant.

R.S Strahan and Bilyeu & Burnett, for respondent.

WALDO C.J.

This case turns on the constitutionality of the act of the legislative assembly, approved October 26, 1882, known as "The Mortgage Tax Law." The act is alleged to be unconstitutional: First, because it does not provide for equal and uniform taxation; and, second, because it is a special law. In a case that came up before the United States circuit court for the district of Oregon, in March, 1884, the act was considered open to both these objections, and was accordingly declared unconstitutional and void. When the law was formerly before this court in Mumford v. Sewall, 4 PAC.REP. 585, these points were not presented by counsel, nor were they considered by the court. These questions have now to be examined.

The constitutional limitations on the powers of the legislative assembly over the subject of taxation are found in section 1 of article 9, and the last clause of section 32 of article 1. Section 1, art. 9, consists of two clauses:

"First, the legislative assembly shall provide by law for a uniform and equal rate of assessment and taxation second, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, literary scientific, religious, or charitable purposes as may be specially exempted by law."

These two clauses are limitations upon distinct powers, and must be construed independently of each other. In the first clause the word "rate" is used in a somewhat different sense when applied to the assessment and when applied to the word "taxation." "The term 'rate' may apply either to the percentage of taxation, or to the valuation of property." State v. Utter, 34 N.J.Law, 489. It is applied in this clause in each sense,--in the former sense to the taxation, and in the latter to the assessment. It is evident that equality in the rate of assessment means proportional valuation,--relative, not absolute, equality; while equality in the rate of taxation means that the percentage shall be the same, or absolutely equal. The result is relative equality of taxation. The first constitution of Tennessee furnished a remarkable instance of absolute equality of taxation, resulting finally, as the court say in Marr v. Enloe, 1 Yerg. 457, in the grossest inequality. A provision required all lands to be "taxed equal and uniform, in such manner that no one hundred acres shall be taxed higher than another."

If the rate of assessment and taxation be equal, it is conceived it will be uniform; that is, that no meaning can be attached to the word "uniform" which is not conveyed by the word "equal." If the rate is everywhere equal, or the same, it will be uniform necessarily. If the rate is varied, so that property of different kinds or in different localities is valued or taxed at different rates, the rate will be unequal, and so not uniform; and, so far as it is equal, it will also be uniform. Now, is the provision that the rate of assessment and taxation shall be equal, or equal and uniform, a limitation imposed by the constitution on power which the legislature would otherwise possess, and if so, what is the extent of that limitation? It will be convenient, in the first place, to see what the powers of the legislature are, in the absence of express constitutional restrictions; for it is a precarious, it may be an impossible, task to define accurately the limitations of a power unless the power itself be first ascertained.

It is ordained, (section 1, art. 4, of the constitution of Oregon:) "The legislative authority of the state shall be vested in the legislative assembly, which shall consist of a senate and house of representatives." In Sharpless v. Mayor of Phila. 21 Pa.St. 160, BLACK, C.J., discussing the taxing power of the commonwealth, said of the like provision in the constitution of Pennsylvania:

"It is plain that the force of these general words, if there had been nothing else to qualify them, would have given to the assembly an unlimited power to make all such laws as they might think proper. They would have had the whole omnipotence of the British parliament. But the absolute power of the people themselves had been previously limited by the federal constitution, and they could not bestow on the legislature authority which had already been given to congress. The judicial and executive powers were also lodged elsewhere, and the legislative department was forbidden to trench upon the others by an implication as clear as words could make it. The jurisdiction of the assembly was still further confined by that part of the constitution called the 'Declaration of Rights,' which, in twenty-five sections, carefully enumerates reserved rights of the people, and closes by declaring that 'everything in this article is excepted out of the general powers of the government, and shall remain forever inviolate.' The general assembly cannot, therefore, pass any law to conflict with the rightful authority of congress, nor perform a judicial or executive function, nor violate the popular privileges reserved by the declaration of rights, nor change the organic structure of the government, nor exercise any other power prohibited in the constitution. If it does any of these things, the judiciary claims, and in clear cases has always exercised, the right to declare all such acts void. But beyond this there lies a vast field of power granted to the legislature by the general words of the constitution, and not reserved, prohibited, or given away to others. Of this field the general assembly is entitled to the full and uncontrolled possession. Their use of it can be limited only by their own discretion. *** There is nothing more easy than to imagine a thousand tyrannical things which the legislature may do if its members forget all their duties, disregard utterly the obligations which they owe to their constituents, and recklessly determine to trample on right and justice. But to take away the power from the legislature because they may abuse it, and give to the judges the right of controlling it, would not be advancing a single step, since the judges can be imagined to be as corrupt and as wicked as legislators. *** The taxing power being a legislative duty, is of course intrusted to the general assembly, and it is given to them without any restriction whatever. They are to use it according to their discretion, and if they abuse it, and if public opinion is not just or enlightened enough to correct their errors, there is no remedy."

So, in Connecticut, it is said that a law laying a tax is, in the absence of constitutional restrictions, peremptory and supreme. The legislature may well say: "Sic volo, sic jubeo; stat pro ratione voluntas." So, in New York, in the great case of People v. Brooklyn, 4 N.Y. 428, the court, referring to the decision in People v. Brooklyn, 6 Barb. 209, where it was held that a tax, to be valid, must be apportioned upon principles of just equality, and upon all the property in the same political district, and that this is a fundamental principle of free government, which, although not contained in the constitution, limits and controls the power of the legislature, say:

"This is new, and it seems to me to be dangerous doctrine. It clothes the judicial tribunals with the power of trying the validity of a tax by a test neither prescribed nor defined by the constitution. If by this test we may condemn an assessment apportioned according to the relation between burden and benefit, we may with a far better reason condemn a capitation tax, on the ground that numerical equality is not just equality; or a general property tax for a local object, because it compels one portion of the community to pay more than their just share for the benefit of another portion. All discriminations in the taxation of property, and all exemptions from taxation on the ground of public policy, would fall by the application of this test. If this doctrine prevails, it places the power of the courts above that of the legislature in a matter affecting not only the vital interests but the very existence of the government. It assumes that the apportionment of taxation is to be regulated by judicial and not by legislative discretion. It obstructs the exercise of powers which belong to and are inherent in the legislative department, and restrains the action of that branch of the government in cases in which the constitution has left it free to act."

In Lane Co. v. Oregon, 7 Wall. 77, the court say:

"The extent to which it (the taxing power) shall be exercised, the subjects on which it shall be exercised, and the mode in which it shall be exercised, are all equally within the discretion of the legislature, to which the states commit the exercise of the power. That discretion is restrained only by the will of the people, expressed in the state constitution, or through elections, and by the condition that it must not be so used as to burden or embarrass the operations of the national government."

See, also, Veazie Bank v. Fenno, 8 Wall. 548; Railroad Co. v. Peniston, 18 Wall. 29; Wilson v. Mayor of New York, 4 E.D. Smith, 678, 679.

"Of late years it has been much the fashion," says BELL, J in Com. v. M'Williams, 11 Pa.St. 70, "to impeach the action of legislative bodies as unconstitutional, when it happens not to accord with a party's notion of propriety and abstract right." "But," say the court, in Davis v. State, 3 Lea, 378, "whether a statute is contrary to the genius of a free people is a question for the legislature, not the judge. It cannot...