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Wisconsin. State Conservation Committee (1915-27) / Biennial report of the State Conservation Commission of Wisconsin for the years 1915 and 1916
(1916)

[Decree of the court],   pp. 71-73 PDF (849.5 KB)


[Concurring opinion by Chief Justic Winslow],   pp. 73-74 PDF (566.1 KB)


Page 73


BIENNIAL REPORT
ing shall be given, so far as practicable, within twenty days after the entry
hereof and proof be filed as part of the proceeds of this case.
   "Administrative orders will be accorded, if necessary, for further
guid-
 ance in the course of the accounting, to the end that this determination
 may be fully carried out according to the intent thereof.
   "Upon the coming in and confirmation of the report of the referees,
judgment shall be rendered in respect to the matters covered thereby in
accordance with such confirmation."
   In a concurring opinion, Chief Justice Winslow does not share the
doubt in regard to the right of the State to raise taxes in acquiring and
handling land as a forest reserve. It is as follows:
   "My difficulty with the opinion" (of the court) "stated
in a general
way, is this: It so limits and circumscribes the powers of the state with
regard to the afforestation and reforestation that it leaves little more
than
a shell behind. At least this is the way the opinion impresses me and the
way I think it will be generally understood.
   "There are three general propositions which I think should be stated
in this case clearly and fully, without hedging them about with limitations,
qualifications, and provisos which render them practically useless, and
those propositions are as follows:
   "First, the acquisition, preservation, and scientific care of forests
and
forest areas by the State, as well as the sale of timber therefrom for gain
in accordance with the well understood canons of forest culture, is pre-
eminently a public purpose. It would be a mere affectation of learning
to dwell upon the value to a state of great forest areas. That has been
established long since and is not open to question. The lamentable results
which have followed the cutting of forests over large areas, the serious
effects of such cutting upon climate, rainfall, preservation of the soil
from erosion, regularity of river flow, and other highly important things
which go to make the welfare of the state, are matters of history. They
need not be descanted upon.
  "Second, before a public purpose of the first rank in importance,
there
can be no question of the power of the state to levy taxes for the accom-
plishment of the purpose. The power of taxation exists for every public
purpose unless some constitutional prohibition, either federal or state,
gas taken it away. I find no such prohibition. I confess my inability to
understand the reasoning which finds it in that clause of the Constitution
which commands the legislature to levy an annual tax to defray the
estimated expenses of the state. The power of taxation is one of the neces-
sary attributes of sovereignty. To say that, because the Constitution
makers thought best to make a specific provision that taxes should be
levied for certain purposes, they intended thereby to interdict taxation
for all other purposes, is to my mind unthinkable. Besides, if affore-
station and reforestation be public purposes, then the moneys spent in
carrying them on are necessarily and properly expenses of the state and
come within the constitutional command. The expenses of a state in-
clude the moneys which it spends in carrying out the public purposes
which the legislative judgment directs to be carried out.
  "Third, afforestation and reforestation of large areas are not 'works
of internal improvement' within the meaning of the Constitution. In
stating the proposition, I accept the definition given in the case of the
State vs. Froehlich, 115 Wis. 32; 91 N. W. 115; 58 L. R. A. 757; 95 Am.
St. Rep. 894. It was there said that the term includes 'those things which
ordinarily might, in human experience, be expected to be undertaken for
profit or benefit to the property interests of private promoters, as dis-
tinguished from those other things which primarily, and preponderantly
merely facilitate the essential functions of government'. In the same
opinion it was said, in substance, that thi8 classification does not exclude
the possibility that some of the dominant characteristics of one class
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