2b 510 L-ed 305 132 84 Gilman v. The City of Sheboygan. authorizing it to be done, it was not competent for the court below to make such an order. That part of the decree is reversed. The residue is affirmed. The cause will be remanded to the court below with instructions to proceed accordingly. GILMAN, Appellant, v. THE CITY OF SHEBOYGAN. 2 Black, 510. UNIFORMITY OF TAXATION-INJUNCTION. 1. The legislature of the State of Wisconsin authorized the town of Sheboygan to subscribe to a railroad or railroads, and provided that the taxes necessary to pay the bonds issued for such subscription should be levied exclusively on the real estate of said city. Held, that a prior act, by which no such distinction was made as to taxation, constituted no contract with the bondholder against exempting personal property from taxation for that purpose. 2. Nor are these acts liable to the objection that a tax for that purpose is taking private property for public use without due compensation. 3. This court follows the court of Wisconsin in holding that the act requiring this tax to be levied exclusively on real estate is a violation of Article VIII, Sec. 1, of the constitution of that State, which declares that "the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe." APPEAL from the district court for the district court of Wisconsin. The case is fully stated in the opinion. Mr. Doolittle, for appellant. Mr. Howe, for appellee. [*511] * Mr. Justice SWAYNE delivered the opinion of the court. This is a suit in equity brought here by appeal from the district court of the United States for the district of Wisconsin. The bill states as follows: The complainant is the owner of a large amount of real estate in the city of Sheboygan, which is described in the bill. On the 17th of January, 1854, the legislature passed an act entitled "An act to authorize the city of Sheboygan to aid in the construction of a railroad." This act authorized the commissioners named in it to borrow $100,000 upon the credit of the city, to be invested in the capital stock of a railroad company, authorized to construct a railroad from the city of Sheboygan westwardly by way of Fond-du-Lac to the Mississippi river, and to issue therefor the bonds of the city according to the provisions of the act. The act further provided that the city should annually levy a tax Gilman v. The City of Sheboygan. upon all the taxable property of the city sufficient, in addition to the dividends upon the shares of its stock in the company, to pay the interest upon the bonds. The act also authorized the city council to submit to the qualified voters of the city the question whether the further sum of $100,000 should be raised and invested in the same manner as the first $100,000. By an act of the legislature of the 28th of March, 1856, entitled "An act to authorize the city of Sheboygan to aid in the construction of the Sheboygan and Mississippi railroad," the city council was authorized to subscribe $50,000 to the capital stock of the company, and to increase the amount of subscription from time to time until the aggregate should reach the sum of $100,000. The installments upon the stock subscribed were to be paid by the levy of an annual tax upon all the real estate in the city-not exceeding $25,000 in any one year until the whole amount of the subscriptions should be paid. Under these acts the city has made loans and issued its bonds therefor to the amount of $200,000. The legislature passed a subsequent act, which is as follows: "Section 1. All taxes hereafter levied by the common council of the city of Sheboygan for the (payment) of principal or *interest of any bonds issued or to be issued by said city [*512] to aid in the construction of any railroad, plank road, or for any improvement of the harbor at the mouth of the Sheboygan river, shall be levied by said council on the real estate of said city exclusively. "Sec. 2. All acts or parts of acts that conflict with the provisions of this act are hereby repealed. "Sec. 3. This act shall take effect and be in force from and after its passage. Approved March 7, 1857." In the year 1857, the city council under the last-named act, levied a tax upon all the real estate within the limits of the city of six cents upon each dollar of the valuation thereof, "for its harbor loans, railroad and plank-road bonds," "and did not levy said sum or any part thereof upon any other kind of property within said city of Sheboygan for the said harbor loans, railroad and plankroad bonds, but levied the tax for the payment of the interest upon those specific objects entirely and solely out of the real estate within said city limits; and that the real estate above stated and set forth in this complaint was included in and was taxed at the rate aforesaid, and for the purpose aforesaid." Gilman v. The City of Sheboygan. At the time this tax was levied, there was personal property in the city of Sheboygan to the amount of three or four hundred thousand dollars, liable to taxation, and upon which no tax was levied for either of said purposes for the year 1857. The act of March 7th, 1857, and the tax levied under it, are alleged to be void. Defendant, Geele, is the treasurer of said city, and as such authorized to execute deeds for land sold for taxes when the time for redemption expires. The defendants' property in the city has been sold for said tax and bought in by the city. Geele threatens to execute deeds to the city for the same. The time for redemption is about to expire. The deeds, it is alleged, will cast a cloud upon complainant's title, embarrass him in disposing of the property, and render it less valuable to him. The prayer of the bill is, that the treasurer be perpet ually enjoined from executing, and the city from receiving, [*513] such deeds, and for general relief. The complainant * sub sequently filed an amended bill, in which it was claimed that the act of 1857, and the tax levied under it, were void, because the act of 1854 provided that a tax should be levied upon all the taxable property of the city for the payment of said bonds, that the bonds were issued and taken upon the faith of that act, and that its provisions constitute a contract with the bondholders, which the act of 1857 seeks to violate. The defendants demurred, and the court sustained the demurrer. Was there such a contract as is averred in the amended bill? The act of 1854 authorized the borrowing of money, the issuing of bonds, and the levying of a tax upon all the property in the city, for the purposes specified. The imposition, modification, and removal of taxes, and the exemption of property from such burdens, is an ordinary exercise of the power of State sovereignty. There is no pledge, express or implied, that this power should not there after be exercised. Admitting that the State could enter into such an engagement, there is no evidence that it did. This fact should never be assumed unless the language used be too clear to admit of doubt. If the agreement existed, the complainant is not in a position to make the question. There is no allegation that the tax levied is insufficient. We hear of no complaint from the bondholders. They are not before us. It does not belong to the complainant, vicariously, to enforce their contract and protect their rights. The objection, that these acts take private property for public purposes without compensation, and hence are within the prohibition of the State constitution upon that subject, is also without Gilman v. The City of Sheboygan. foundation. That clause of the constitution refers solely to the exercise, by the State, of the right of eminent domain. The People v. The Mayor of Brooklyn, (4 Coms. 419.) Is the act of 1857 invalid, because it requires the tax in question to be levied exclusively upon the real estate of the city? The provisions of the State constitution, to which our attention has been called, as bearing upon the subject, are the following: *Art. VIII. "Sec. 1.-The rule of taxation shall be [* 514 ] uniform, and taxes shall be levied upon such property as the legislature shall prescribe. Art. XI. "Sec. 3.-It shall be the duty of the legislature, and they are hereby required, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts, by such municipal corporations.' The revised statutes of Wisconsin, title 5, chap. 18, page 200, provide as follows: "Sec. 1. All property, real and personal, within this State, not expressly exempted therefrom, shall be subject to taxation in the manner provided by law." "Sec. 4. The following property shall be exempt from taxation: "All property, real and personal, of the United States and of this State. All public or corporate property of the several counties, cities, villages, towns, and school districts in this State." * * * "All property exempt by law from execution, not exceeding in value $200. "The personal property of all literary, benevolent, charitable, and scientific institutions within this State, and such real estate as shall be actually occupied by them for the purposes for which they have been or shall be organized." "All houses of public worship, and the lots on which they are situate," &c. "All public libraries, and the real and personal property belonging to or connected with the same. "The property of all Indians, who are not citizens, except the lands held by them by purchase. "The personal property of persons, who, by reason of infirmity, age, and poverty, may, in the opinion of the assessors, be unable to contribute towards the public charges. * All property, real and personal, belonging to any [* 515] agricultural society in this State." * * * Gilman v. The City of Sheboygan. No other property is exempted. In Weeks v. The City of Milwaukie et al. (10 Wis. Rep. 242,) Mr. Justice Payne, referring to "the provision of article II. sec. 3, requiring the legislature, in establishing municipal corporations, to restrict their powers of taxation so as to prevent abuses, &c.'” says, "Restrictions may be and undoubtedly are necessary to prevent abuses which may not amount to a violation of the rule of uniformity. There may be uniform abuse of the taxing power by reckless and improvident management on the part of these local authorities, and I think the provision last mentioned was designed to give further protection-in addition to that furnished by the rule of uniformity.' Such was the unanimous judgment of the court. Concurring in that opinion, we lay this section of the constitution out of view. In Knowlton v. The Supervisors of Rock County, (9 Wis. Rep. 410,) the section requiring uniformity of taxation underwent an able and exhaustive examination. The court affirmed the following propositions: "The levying of taxes by the authorities of a county, city, or town, for their support is as much an exercise of the taxing power as when levied directly by the State for its support. The State acts by the municipal governments, and their acts in levying taxes are as much the act of the State as if the State acted by its own officers. "The constitution of the State requires, as a rule in levying taxes, that the valuation must be uniform and in all cases alike or equal, operating alike upon all the taxable property throughout the territorial limits of the State or municipality within which the tax is to be raised. And where the legislature prescribed a different rule, the act is a departure from the constitution and therefore void. "The constitution has fixed one unbending uniform rule of taxation for the State, and property cannot be classified and taxed as classed by different rules. [* 516 ] *The provision of the constitution, that taxes shall be levied upon such property as the legislature shall prescribe, does not sanction a discrimination which provides for taxing a particular kind of property for the support of government by a different rule from that by which other property is taxed; for when the kind of property is prescribed the rule of taxation must be uniform. All kinds of property must be taxed uniformly, or be absolutely exempt." In this case, under the provisions of the Janesville, lands within the city limits laid charter of the city of out into city lots, and other lands not so laid out, had been taxed at different rates, and |