Page:North Dakota Reports (vol. 2).pdf/412

 I deem it my duty to hold that this law is in conflict also with § 1925 of the organic act of the territory of Dakota, and with the fourteenth amendment of the federal constitution. Such has been the ruling of the federal circuit court sitting in the district of North Dakota in the case of Railroad Co. v. Walker, 47 Fed. Rep. 681. This decision holds that the gross earnings law of 1889 is repugnant to this section of the organic act and to the fourteenth amendment. The act of 1889 and the act of 1883 are, so far as these questions are concerned, identical in their provisions. The decision applies with full force to the act of 1883, and, following this decision, as it is my duty to do under our dual system of government, I am constrained to hold this statute is void because the organic act and the fourteenth amendment are both violated by it. Said Judge CALDWELL in that case: “Property of the same kind, in the same condition, and used for the same purpose, must be taxed by a uniform tule, without regard to its ownership. The legislature having selected land as a subject of taxation, all lands under the same condition are subject to be taxed. The law for the taxation of land must operate equally and uniformly upon all lands the condition and use of which are similar. While property may be classified for the purpose of taxation, between the subjects of taxation in the same class there must be equality. Property of the same kind, in the same condition, and used for the same purpose, cannot be divided into different classes for purposes of taxation, and taxed by a different rule, because it belongs to different owners. But this is precisely what the act under consideration seeks todo. It exempts the lands of the company from taxation simply and solely because they belong to the company, and taxes all other lands, by a uniform rule, according to their value. It was not competent for the legislature, either under the organic act or the fourteenth amendment of the constitution of the United States, to classify the lands in the territory for purposes uf taxation into lands owned by railroad companies and lands owned by all other persons, and declare that the former should not and the latter should be taxed.” While I am willing to admit that much can be said on the other side of these two questions, and that their solution is not free