Taxation — Eminent Domain. 
38a 
being made on their rolling stock for non-payment of taxes, on 
the ground that the law 1 declared the rolling stock of a railroad 
company a “fixture. ” The court ruled that rolling stock had been 
declared a “ fixture “ only for certain purposes (such as enabling 
the company to give liens), but that it was nevertheless personal 
property, and as such liable to sale for unpaid taxes. 
The next was a decision handed down in 1867. 2 It involved 
the question of special assessments. By referring to the law 
of 1854, as given in a preceding page, it will be noticed that 
even special assessments were excluded. But the city charter 
of Milwaukee 3 provided that real estate exempted from taxation 
by the laws of the state, shall be subject to special taxes as 
other real estate under the charter. The court held that the 
legislature of 1852 could not bind the legislature of 1854, and 
that the law of 1854 was clear in excluding special assessments. 
So far the decision seems sound. Still, it might be urged that 
without an act repealing section 22 of the charter, the railroads 
could be held responsible for special assessments. However, 
the decision was not written until September, 1867, seven years 
after an act had been passed holding railroad companies for 
assessments. The appellant even calls attention to this law, 
and the chief obstacle in its application to this case seems to 
have been the date of its publication compared with the date on 
which action was taken for the sale of property for assessments. 
In the light of these facts, it does not seem clear that it was 
not the intention of the legislature to hold the railroads for 
special assessments, and the decision does not appear to have 
been in harmony with the development of the system of assess¬ 
ments. Courts can not decide according to the desirability or 
undesirability of things, nor can they decide in a certain way 
in order to avoid a check on the healthy development of a sound 
system of finance. These are matters belonging to the legisla¬ 
tive department of government. But when a secondary question 
which can be construed in either way comes into consideration, 
it would seem good public policy to construe it in favor of a 
1 Revised Statutes, 1858, Ch. 79, §34. 
2 Brightman vs. Kirner, 22 Wis., 53. 
3 Laws, 1852, Ch. 10, §22. 
