
    Mary E. Le Duc vs. City of Hastings.
    July 3, 1888.
    .Constitution — Exemption from Taxation. — Sections 1 and 3, art. 9, of the constitution of the state, render it imperative that all property, of which exemption is not permitted, shall be taxed, and preclude any other exemptions than those specified in section 3.
    ■Same — Refunding of Taxes. — An exemption not permitted by the constitution cannot be effected by indirection, by releasing or refunding the ■ taxes after they have been levied.
    .-Same — Soldiers’ Bounty Tax. — Chapter 3, Laws 1866, as amended by chap-49, Laws 1867, held unconstitutional, as being an attempt, by evasion, to exempt from taxation property of certain classes of persons which does not fall within any of the exemptions allowed by the constitution.
    Appeal by defendant from an order of the district court for Da'kota county, Crosby, J., presiding, overruling a demurrer to the eom--plaint.
    
      McNeil V. Seymour, for appellant.
    
      Hodgson S Schaller, for respondent.
   Mitchell, J.

This action was brought under chapter 3, Laws -1866, as amended by chapter 49, Laws 1867, and chapter 65, Laws 1887. Section 1 makes it the duty of the authorities of any county, .city, or town, in which any tax has been levied for the purpose of paying bounties to volunteers, upon the property of any citizen of the state who on or before January 1,1864, entered the military service of the United States, and has been honorably discharged or resigned, or still remains in such service, or upon the property of the wife, widow, or minor children of such person, upon due proof of • such facts, to issue to any such person an order upon the treasurer .,of such county, city, or town for the amount of such taxes, including -charges and interest, and requires the treasurer upon whom the order -is drawn, to receive the same in payment of any taxes due or that - may become due. Section 2 provides that, if such authorities refuse ■ to issue the order, the county, city, or town shall be liable in an action to the party aggrieved for twice the amount. In March, 1887, -the plaintiff, the wife of W. G. Le Due, a citizen of this state who •entered the military service of the United States in April, 1862, and was honorably discharged, presented to the city council of Hastings •due proof of the facts required by the act, and demanded an order ■on the city treasurer for the amount of bounty taxes levied on her prop•erty in that city for the years of 1863, 1864, 1865, and 1866, with interest and charges. The council having refused to issue the order, she brought this action under the second section of the act to recover ■double the amount. The defendant disputes plaintiff’s right of recovery on the grounds (1) that her cause of action is barred by the statute of limitation; (2) that the act is, for several reasons, unconstitutional and void.

Most of the points urged we find it unnecessary to consider. The act in question is manifestly unconstitutional, for a reason apparent ■on its very face, and which goes to the very foundation of the merits of this case. Section 1, art. 9, of the constitution of the state, provides that all taxes to be raised in this state shall be as nearly equal as may be, and all property on which taxes are to be levied shall have a cash valuation, and be equalized throughout the state. Section 3 of the same article provides that laws shall be passed taxing all moneys, credits, investments in bonds, stocks, stock companies, or otherwise, and also all real and personal property, according to its true value in money, with certain specified exemptions. Equality • of burden is therefore the principle of the constitution. There is to be no rule that exempts some property (unless within the specified ■ exceptions) and casts the burden upon the rest. These constitutional provisions render it imperative that all the property of which •exemption is not permitted shall be taxed, and preclude any other ■ exemptions than those specified. "Where there is no power to make .an exemption, there is none to relieve the property by releasing or refunding the tax after it is levied. What cannot be done directly • cannot be done indirectly. The act in question is nothing more nor less than an attempt by indirection to exempt from bounty taxes the property of certain classes of persons. Their property is not within ■ the exemptions specified in the constitution. We need not discuss ■.the power of the legislature to authorize or require the levy of taxes to pay bounties to soldiers or to support their families. This is no such act. Its benefits are distributed neither on the basis of actual service nor of the party’s need of public aid, but on the basis of the-amount of property he owns. The more he has, the greater the-gratuity he receives; and if he has no property,.and hence is presumably more in need of aid, he gets nothing. This is neither equality nor justice. The act is purely and simply an attempt to exempt from taxation the property of certain persons which does not falL within any of the exemptions allowed by the constitution. However commendable or patriotic may have been the intentions which, prompted such legislation, it cannot be sustained.

Order reversed.  