Page:North Dakota Reports (vol. 2).pdf/359

 tended to apply only to property declared to be taxable; and, as railroad property is, by the express terms of the act of 1888, exempt from taxation, the provision is immaterial.

The conclusion that we have reached upon this branch of the case is in accordance with the opinions of every court that has been called upon to pass upon a similar question. The supreme court of Wisconsin, in the case of Railroad Co. v. Taylor Co., 52 Wis. 37,8 N. W. Rep. 833, was called upon to determine whether a law exempting the land grant of the Wisconsin Central Company from taxation in consideration of a percentage of the company’s gross earnings was constitutional or not. The constitutional provision relied upon by the defendant (Taylor county) was that “the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe;” and the defendant argued that this provision prohibited the legislature from exempting from taxation the lands granted to railroad companies to aid in the construction of their lines. But the court held that the provision of the constitution was applicable only to such property as was declared to be taxable, and that, as the property of the company was expressly declared to be exempt, the provision was inoperative. We quote at considerable length from the opinion, as the case is, perhaps, the leading one upon this point. Cassoday, J., in delivering the opinion of the court, said: “Since the legislature are to ’prescribe’ the ‘ property’ which must bear the burden of taxation, it follows as a logical sequence that the balance of the property in the state, and which is not so ‘prescribed,’ must necessarily be exempt from taxation. It is only upon the property so prescribed or designated by the legislature that the rule of uniformity can have any application. It clearly cannot apply to property not prescribed, and which would therefore be exempt. But the right of the legislature to prescribe what property shall be taxed includes the right to prescribe what property shall not be taxed. The right of choosing some from the multiplicity of kinds, classes, species, use, and ownership of property in the state, and the rejection of others, includes the absolute power to discriminate between what shall be chosen and what rejected, except in so far as it may be limited by the re-