Page:North Dakota Reports (vol. 2).pdf/358

 Standing alone it might be construed to mean that all property of every kind must be taxed equally without discrimination; but the words ‘subject to taxation,’ limiting the words and clause of which they form a part, extend their limiting power to the principal clause which the disjunctive clause itself limits, so that the meaning of both construed together, is that there shall be no unjust discrimination in the taxation of the different kinds of property subject to taxation, but all such property shall be taxed in proportion to its value. These words, ‘subject to taxation,’ are of importance in the construction of this section. Without them, all property would be subject to taxation; with them, only certain property is liable to taxation. Who is to determine what property is ‘subject to taxation?’ The courts cannot determine. It is a legislative function. It can only be exercised by the legislature or by congress. Congress has not seen fit to exercise it, but has given to the legislature the absolute control over ‘all rightful subjects of legislation,’ saving and reserving to itself alone the right to modify it or annul the same. This certainly is a rightful subject of legislation, and it follows that congress has given to the legislature ihe right to apportion and subject property to taxation. The legislature, then, has a right to say what property shall be subject, and what property shall not be subject, to taxation; what property shall be taxed, and what property shall be exempt from taxation—limited only by the provision that all property so subject to taxation shall be taxed without unjust discrimination in favor of one kind of property as against another, so that every kind of such property shall be taxed in proportion to its value.” This decision established beyond doubt two propositions, viz: (1) That the territorial legislature had full and plenary power to select the subjects of taxation; and (2) that § 6 became operative only upon such selected subjects, and was absolutely of no effect in respect of property not selected for taxation. As the property of railroad companies was not selected for taxation, but on the contrary, was exempted by the statute of 1883, it follows that the statute of 1883 is not, so far as its constitutionality is concerned, affected by § 6 of the organic act. That section has no bearing whatsoever upon the question raised. It was in-