THE PEOPLE . THE AUDITOR GENERAL. G. V. N. Lothrop, and J. F. Joy, for relators. J. M. Howard, Attorney General, for the respondent. The remission of the taxes assessed upon these lands is a violation of the eleventh section of Article XIV of the Constitution, which declares that "the legislature shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes shall be levied on such property as shall be prescribed by law." The remission of the taxes to the canal company in the manner provided by section two of the amendatory act, will have the effect: First: To impose upon all the property of the state subject to the payment of the state tax, that part of the state tax which was thus imposed upon the privileged lands: Second: To impose upon all the other land and personal property in the county, that portion of the county tax which, by the assessment, fell upon these lands. In short, the other property in the state is charged annually with the taxes levied on these lands. It can not be said that this mode or rule of levying taxes is uniform. It is the reverse of uniform. It is allowing the Legislature to relieve one portion of the state entirely from taxation, and to impose the whole of the public burdens upon a part, however small that part may be. By section twelve of the same article, all property which is not, by section eleven, exempted from assessment by law is to be assessed at its cash value; and by section eleven the Legislature is required to impose a tax upon it according to a uniform rule; that is, a rule which shall make each man's property contribute ratably, in proportion to its cash value, to the public burdens. If this be not the meaning of uniformity in the rule of taxation, then it has no practical meaning. Assuredly, it does not admit of the idea of inequality. The taxation referred to in section eleven of Article XIV THE PEOPLE V. THE AUDITOR GENERAL. plainly means the ordinary annual tax, imposed by the Legislature for the purpose of carrying on the government, paying the interest on the public debt, and upon the educational funds in the hands of the state, and defraying the expenses of the counties, as required by section one; and does not include taxation for opening or improving streets in cities and villages, or other similar taxes authorized to be levied for mere local objects.-8 Metc. 191, 187. These taxes are imposed under the "equalization" required by section thirteen of the same article, and by the act of 1851, page 143, the valuations of the property in the several counties, as equalized and fixed by the Board of Equalization, are made "the basis for apportioning all state taxes until another equalization shall be made."-(Comp. L. §226.) That it was not intended to embrace such mere local and temporary taxes, is made more plain by the residue of the same section, "except on property paying specific taxes; and taxes shall be levied on such property as shall be prescribed by law." This language implies that the Legislature may still impose specific taxes without reference to the value of the property, and may exempt property entirely from taxation. These are ordinary powers of govern ment, which are still treated as without limitation or restriction; and the reference to them shows that it was the intention of the framers to restrict the power of taxation in regard to property which is not the subject of those powers, and that the restriction was that the taxation shall be uniform. These lands are not, by the terms of the R. S. of 1846 (p. 102), or by the act of February 14, 1853, "expressly," or at all exempted from taxation; the amendatory act of 1853 requires them to be assessed, like other lands in the county, and charges the amount over to the rest of the state. That this is contrary to the intention of the Constitution, is quite clear. The Legislature can not do that which they are required to avoid; they can not establish a rule of taxa THE PEOPLE . THE AUDITOR GENERAL. tion which is not uniform, while they are under an obligation to provide one which is.-Portland Bank v. Apthorp, 12 Mass. 254; City of Boston v. Shaw, 1 Metc. 130, 137; Goddard's Case, 16 Pick. 504; City of Lowell v. Hadley, 8 Metc. 180; Cumming v. Police Jury of Rapides, 9 La. An. Rep. 503; Crow v. State, 14 Miss. 237. 12. The lands contracted are sold within the meaning of the act. MARTIN Ch. J.: Two questions are presented for our consideration. 1st, whether the provisions of the act of the Legislature supplementary to an act to provide for the construction of a ship canal around the falls of St. Mary's, providing for the remission of taxes to the contractors is constitutional; and 2d, if such be the case, whether the contract of the contractors with John Kerswell for the sale of a portion of their lands, is a sale within the purview of such act. Upon the first question we are agreed that the provision of the act referred to, so far as it authorizes the contract for the remission of the taxes, is constitutional. The Congress of the United States by an act approved August 26th, 1852, (10 U. S. Stats. at Large, 35) entitled "An act granting to the state of Michigan the right of way, and a donation of public lands, for the construction of a Ship Canal around the Falls of St. Mary's, in said State," granted to the state the right to construct said canal upon its lands, and also 750,000 acres of land for the purpose of aiding the state in constructing and completing the same. The act provided that the land so granted should be applied to no other use, and that if the canal should not be com. menced within three and completed within ten years, the proceeds of the sales of such lands should be paid by this state to the United States, and that accounts should be kept and rendered annually of costs, expense, &c., and until the state is fully reimbursed it may charge a toll for the use of THE PEOPLE. THE AUDITOR GENERAL. said canal, and afterward, only enough to keep it in repair, &c. By an act of the Legislature of this state, approved February 5th, 1853, the necessary provisions were made for securing the grant, and for the construction of the canal, and the Governor was authorized, by and with the advice and consent of the Senate, to appoint commissioners and an engineer, who were to have the entire and absolute control and supervision of the construction of the canal; and the commissioners were authorized and empowered to make all necessary contracts for the construction of the same, &c. This act contemplated that the contractors for such construction should receive the lands donated in payment (sec. 6), and this was evidently the basis upon which the act was framed. By a supplementary act approved February 12th, 1853, the commissioners were authorized, in case they should find it impracticable to let the contract for the construction of said canal on terms which would secure its completion according to the provisions of the original act, in their discretion to contract that any taxes to be assessed on the lands donated for that purpose, should be remitted for a period not exceeding five years, &c., to the person or persons taking such contract: "Provided that whenever any such lands shall be sold by the contractors to any other persons, the same shall thereafter be subject to taxation as in other cases." It is evident from a consideration of these acts that the land was never a part of the public domain of Michigan, either by grant from Congress, or by sale to a purchaser, before the passage of the act in question, so that the right of taxation had accrued to the state. It was granted to the state for the specific purpose of being applied, either by sale or appropriation, to the purposes of the construction of the canal. As such, it assumed the character of a fund, to be expended under the direction of the state; and so the Legislature evidently regarded it, and that the state held such land only as trustee for the accomplishment of that purpose. 7 MICH-G. THE PEOPLE V. THE AUDITOR GENERAL. Instead of selling the lands, and appropriating the avails. towards the construction of the canal, the Legislature found it desirable, if not necessary, to appropriate the lands themselves. From the course of legislation we may presume that this appropriation of the lands, was found to be insufficient of itself to induce any one to undertake the work, and that in order to render it sufficient, the state authorized the contract for the remission of the taxes thereon. This authority was given, and the contract executed, while the lands were in a condition in which they could not be taxed, and until such right of taxation had accrued to the state, it was not within the scope of either its constitutional or legislative provisions. The state had power to contract with the company to convey the lands after five years, and thus relieve them during that period from taxes, and if it might do this, it is difficult to find a reason why it might not so convey them as to secure the same exemption from taxation. In making this contract the state acted as the trustee of the General Government; in the law authorizing the contract, it was dealing with the subject of the trust, over which no right of taxation then existed. But were this otherwise, I do not regard this remission of the taxes as a violation of that provision of Article XIV of the Constitution which requires the Legislature to provide an uniform rule of taxation, except on property paying specific taxes. This provision of the Constitution has no reference to the power to exempt, or to remit taxes; which is, and necessarily must be, to a great extent, left to the discretion of the Legislature. Its design was to secure, to every portion of the state, and to every class of property taxed, a uniform rate-to secure equality, so that property in one quarter should not be taxed at a higher rate than in another, or the same kind taxed unequally. The Legislature has the power of prescribing the subjects of taxation, and of exemption, but it can not arbitrarily tax property according to locality, kind, or quality, without regard to value (Sedg. on Stat. 557), but |