Page:North Dakota Reports (vol. 2).pdf/453

 Another consideration affords strong evidence that the claim for the value of the seed grain furnished is not a tax, although placed upon the tax roll, to be collected as a first lien out of the real estate. Practically every state constitution embodies 8 provision for uniformity in taxation. The great purpose of such articles is to prevent unjust discrimination in taxation. Whenever there is a tax violative of the terms of such a provision, we must expect to find the tax an unjust one. Now, it is clear if the obligation to pay for seed grain is a tax, it is in conflict with the terms of § 1925 of the organic act of the territory of Dakota, in force at the time the act of 1889 was passed; and that the act of 1890 is in conflict with the terms of § 176 of the constitution of this state in force when the latter act was passed. These provisions require uniformity of taxation. But, so far from there being any injustice in requiring the person who has been the recipient of aid to pay for the seed grain furnished him, the justice of such a policy is too palpable to justify comment. And yet no one can pretend that there is any uniformity in a system of taxation that imposes upon one or a few citizens, and upon his or their property, in addition to the burden resting upon all alike, an additional sum asa tax. We must therefore conclude that that which creates a plain violation of the terms of such a fundamental provision, if regarded as a tax, and yet bears no semblance to unjust discrimination, cannot possibly be a tax at all. The determination of this question is the pivotal point in the case. If this obligation is a tax in a proper sense, then the state may give it a priority of lien. If not a tax, then the legislature cannot, by designating it as a tax, give it any greater preference as a lien than could be given it should no such name be affixed to it. To postpone a legal existing lien upon real property to a subsequent lien by a statute enacted subsequently to the attaching of such prior lien is to impair the obligation of a contract. This object cannot be accomplished by indirection—by calling something a tax which is not a tax. The legislature could not by an act passed after the plaintiff's mortgage had been executed and become a lien upon the property, confer upon any person who should loan or advance money or money’s worth to the mortgagor a lien upon