WALCOTT V. THE PEOPLE.

ascertain the meaning of those provisions of the law and constitution, supposed to be incompatible. If, upon due consideration, it is evident that both can not stand together, the result is instant, certain and decisive, and the inferior authority yields to that which is supreme. If, however, the inquiry leaves the mind in doubt as to whether the statute is in derogation of the constitution, a just presumption comes in aid of the legislative judgment and overcomes the doubt.

The second section of the act in question requires the company, association or individual conducting the business specified, to pay into the state treasury a specific state tax of one per cent. on the gross amount of current business in the state, and that the treasurer shall give his receipt therefor.

It is provided by Art. 14, § 1, Const. that "all specific state taxes, except those received from the mining companies of the Upper Peninsula, shall be applied in paying the interest upon the primary school, university and other educational funds, and the interest and principle of the state debt, in the order herein recited, until the extinguishment of the state debt, other than the amounts due to educational funds, when such specific taxes shall be added to and constitute a part of the Primary School Interest Fund." It is apparent that the fundamental law has irrevocably prescribed the application of all such specific state taxes as that imposed by the act in question, and that the legislature could in no manner change the purpose or alter the destination of the tax.

The application is not only unalterably fixed, but is specifically defined, and nothing could be added by legislation but an idle repetition of the language of the constitution. The statute distinctly describes the tax and directs its payment into the state treasury, and the constitution then takes the subject from the sphere of legislative discretion, and decrees the uses to which the money must be appropriated.

It inevitably follows that by the conjoint operation of the statute and constitution, the object to which the tax

WALCOTT v. THE PEOPLE.

would be applied is made most distinct and certain, and no language in the act could make it more so. I think it may well be doubted whether the men who framed the constitution, or the people who adopted it, proposed to require a thing so vain and fruitless as the re-enactment of the constitutional provision in every law imposing a tax like that in question. The whole course of legislation, since the adoption of the constitution, has been upon the theory that no such necessity existed, and the opinion is believed to have been almost universal, that the section quoted was never intended to have the application now suggested.

The constitution itself, in continuing several laws imposing specific taxes, leaves the appropriation of the taxes to the standing provision of Sec. 1 already quoted.— Art. 14, §10, also § 1 of schedule.

It is not unreasonable to suppose that Sec. 14 was not intended to apply to cases in which the object of the tax should be found distinctly and unalterably fixed by the constitution itself.

I think, therefore, the court is not at liberty to hold the act to be invalid on the ground stated.

It is also insisted by the counsel for the plaintiff in error, that the constitution intended to limit the action of the legislature in the imposition of specific taxes to corporations created by the laws of this state, and that a tax on business is prohibited by implication. The first branch of this objection is attempted to be supported by the supposition that the enumeration in Art. 14, § 10 of certain corporations as subject to the imposition of specific taxes, is a negative upon the right thus to tax any other organizations; and as giving color to the idea that the bodies so made liable were intended to be domestic corporations.

As it is not pretended that the express company is a corporation, it is only material for the present purpose to inquire whether the power to impose a specific tax is confined to corporations.

WALCOTT V. THE PEOPLE.

An examination of the power of the state government to raise a revenue, must always involve several considerations of the first importance.

As the necessities of the state, under all circumstances, could never be accurately measured in advance, nor the resources of the community, in all their possible changes and relations, be anticipated or conjectured, it would seem reasonable to suppose that a people, so well versed in political affairs as those of this state, would not purposely withhold from their own government the power to supply the public wants by any eligible method of taxation, or deny themselves the right of selection among the rightful objects of it. A contrary view would presuppose the deliberate establishment. of government, and the equally deliberate denial of a power which might be ultimately necessary to enable it to accomplish the ends of its institution. That a course so extraordinary had been pursued, could never be admitted, except upon the clearest evidence.

The characteristics which distinguish incorporated from unincorporated companies, afford no sufficient reason for imputing any purpose to make the former subject to specific taxes and exempt the latter from them.

In number, amount of capital, and extent of operations, the latter hold a much larger place in the field of business enterprise than the former occupied half a century since.

Upon turning to the constitution, it will be observed that the first clause of sec. 10, before mentioned, declares expressly that the state may continue to collect all specific taxes accruing under existing laws. Several of the laws thus referred to, were of long standing, and imposed taxes upon business. Many of them applied to individuals, and not to corporations. The clause cited had the effect to "continue" these taxes.

It was a constitutional declaration in favor of specific taxes on the business of individuals, in so far as the same were then required by existing laws.

It determined that there was no objection in principle to the imposition of a specific tax on individual occupations, and no reason is perceived why the date of the law should change the principle. If, in the absence of constitutional prohibition, the state had the inherent right in 1850 to tax business and professions, it must have possessed the same right in 1851 and in 1867.

It is, however, insisted that the constitution inhibits the imposition of specific taxes, except on corporations created subsequent to the constitution. This proposition is supposed to be maintained by the second branch of Art. 14. § 10, of the Constitution.

"The state may

The whole section reads as follows: continue to collect all specific taxes accruing to the treasury under existing laws. The legislature may provide for the collection of specific taxes, from banking, railroad, plank road, and other corporations hereafter created."

It is not denied that the first branch of the section is permissive and not prohibitory; that it was intended as an express authority to continue the collection of specific taxes under the constitution to the extent then allowed by law, and it can not be denied that the clause standing with it, and which is relied upon by the plaintiff in error, as excluding the right to impose specific taxes, by subsequent laws, on anything except corporations, is conceived in language appropriate to a grant of power and not to a limitation. The position of the passage, and the admitted scope of the. paragraph associated with it, and the natural and ordinary meaning of the language concur in giving an interpretation opposed to inhibition.

To this it may be said that, considering the nature and object of a state constitution, there could have been no necessity for any such specific grant of legislative power; since, according to well settled principles, the particular authority would have been as clearly within the competency of the legislature without any such provision, as with it; and that,

WALCOTT v. THE PEOPLE.

therefore, the clause in question must have been intended to accomplish some other object than simply to confer the power to tax the organizations there described.

Without pausing to consider how far the doctrine that the legislative power of the state is unlimited, except as restricted by the fundamental law, may be pushed in any case, and especially in its application to a constitution containing much of administrative detail, it may be admitted. that the clause in question was not needed simply as a grant of power, and was intended to effectuate another purpose.

In seeking for that purpose, we should look for it in some object which would be plainly satisfied by words of formal grant, and which would involve no incongruity or strained construction.

It is well understood that at a very early day the legislatures of several of the states assumed to grant charters of incorporation for banking and other purposes, and to insert stipulations upon various grounds, exempting the institutions wholly or in part from subsequent taxation.

This practice became at length so common, and operated so extensively in withdrawing corporate property from the burdens to which individual wealth was subject, that the powers of the courts were many times invoked against it.

The decisions of the tribunals were not entirely harmonious, but the great weight of authority favored the opinion that in the absence of any constitutional provision assuring the right to tax, the legislatures were empowered to stipulate for the exemption; and that if they did so, the charters would be in the nature of contracts, and stand protected by that clause of the federal constitution which forbade the passage of any law impairing the obligation of contracts.

The controversy on this subject was in progress when the present state constitution was framed and adopted.Seymour v. The Town of Hartford, 21 Conn. 481, and cases cited; Gordon v. The Appeal Tax Court, 3 How. 133; Ang.