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did not provide for the assessment of this stock among the mass of the property of the corporation; that the assessment was upon another subject, namely, the original capital, and that thus the immunity of the federal stock from taxation was not an element of the determination made by the commissioners of taxes in this

case.

But it is argued, that if this were conceded to be so, it would then appear that the act of 1863 was a premeditated evasion of the judgment of the national court which ought not to prevail; for what the legislature cannot do directly it ought not to be allowed to do at all. The force of this argument is somewhat weakened by the consideration, that the provisions of that act were only a return to the system of the Revised Statutes, which regulated the subject in this state for nearly thirty years. Still, it is not to be disguised that the system was revived in 1863, with a view to prohibit the banks from availing themselves of an advantage which every natural person and the other classes of corporation were entitled to. It was a measure apparently hostile to the banks and other corporations embraced in the act, though doubtless originating in considerations of public policy. The exemption of the immense amount of these securities held by the banking institutions will, no doubt, prove very onerous to the owners of other property liable to taxation. This is a necessary consequence of the immunity conferred upon federal stocks by the constitutional construction to which I have referred. It seems to me to afford no reason for so shaping state legislation, as to discriminate in a hostile spirit against the investments of moneyed institutions. But we have to deal with the law as we find it written; and I think the appropriate answer to the argument, which assumes that the act of 1863 is an attempt to do by indirection what could not be done plainly and directly, is, that the arrangements for state taxation are within the uncontrollable discretion of the legislature, whose motives are not subject to the criticism of the courts. If a certain effect shall be found to flow from taxation of one particular subject instead of another, the inconvenience must be submitted to, unless the legislature will consent

to change the rule. I have, personally, no sympathy with hostile legislation aimed at particular interests existing under the authority of the laws; but this court has not, as I have said, any jurisdiction to pass upon the motives of the legislative branch of the government, when no constitutional right is violated; and there is no constitutional provision which declares that taxes shall be assessed equally, and according to value, upon all the property of the citizens of the state.1

The judgment of the court below should be affirmed.

DAVIES, SELDEN, INGRAHAM and HODGEBOOM, JJ., concurred in this opinion, and JOHNSON, J., also delivered a concurring opinion.

MULLIN, J., (dissenting).—In order to a correct understanding of the questions arising on this appeal, a brief history of the legislation of the state upon the subject of the taxation of corporations is necessary. Prior to 1823, there was no statute regulating the taxation of these institutions. The Supreme Court held in 1817, in the case of the Clinton Woollen Company vs. Morse, cited in the People vs. The Utica Insurance Company, 15 Johns. R. 382, that corporations were taxable on their property, in the same manner as persons, notwithstanding the statute regulating taxation mentioned persons only, as liable to be assessed, and the term corporation was not used.

In 1823 an act was passed providing, amongst other things, that all incorporated companies receiving a regular income from the employment of their capital, should be considered persons within the meaning of said act, and assessed accordingly. Under this act they were assessed for the property they owned, both real and personal, precisely as individuals were assessed, and without regard to the value of their capital stock. (See Laws of 1823, p. 395, § 14).

In 1825, the preceding act was amended (see Laws of that year, ch. 254, sec. 1), and it was provided that it should be the duty of

1 The learned judge then proceeds to discuss the question of costs. This part of the opinion is necessarily omitted on account of the great length of the case.

assessors to insert in the assessment rolls the name of each incorporated company liable to be taxed, and the amounts of its capital paid in, or secured to be paid in, and should designate how much of it is in real and how much in personal property, and how much was deducted by reason of stock owned by the state, or by literary or charitable incorporated companies.

The Revised Statutes adopted the principle of taxation of corporations introduced in the preceding act. By sect. 1, title 4, chap. 13, part 1st of those statutes, it was provided that all moneyed or stock corporations deriving an income or profit from their capital, or otherwise, shall be liable to taxation on their capital, in the manner thereinafter prescribed.

The next section required the president or some other one of several officers enumerated, to make and deliver, on or before the 1st of July in each year, to the assessors of the town or ward in which such company is liable to taxation, a written statement specifying,

1st. The real estate, if any, owned by such company, where situated, and the sums paid therefor.

2d. The capital stock actually paid in and secured to be paid in, excepting therefrom the sums paid for real estate, and the amount of such capital stock held by the state, and by any incorporated literary or charitable institution.

3d. The place where the principal office, or place of transacting the financial business of the company is situated.

The third section required a similar statement to be delivered to the comptroller on or before the 1st July in each year.

Section 6 required the assessors to enter all incorporated companies from which such statements shall have been received, and the property of such companies and the property of all other incor$porated companies, liable to taxation, in their assessment rolls, in the following manner :

·

1st. In the first column the name of each incorporated compay their town liable to taxation, on its capital or otherwise, anthaer its name the amount of its capital stock paid in and secured to be paid in, the amount paid by it for real estate then belonging to such company, and the amount of its stock belonging

to the state and to incorporated literary and charitable institutions.

2d. In the second column the quantity of real estate owned by such company in such town, and in the third column the actual value thereof.

3d. In the fourth column the capital stock of every incorporated company, except manufacturing and turnpike corporations and marine insurance companies, paid in and secured to be paid in, after deducting the sums paid out for all the real estate of such company, and the amount of stock held by the state and by literary and charitable institutions.

The 7th section required the assessors to insert in the column above mentioned the cash value of the stock of all manufacturing and turnpike corporations, to be ascertained by the sales of the stock or in any other manner, deducting therefrom the items hereinbefore mentioned, which value, together with the value of the real estate, shall constitute the amount on which the tax shall be assessed.

By the 10th section it is declared that the capital stock of every company liable to taxation, except such part as shall be excepted in the assessment roll and by the preceding sections, shall be assessed and taxed in the same manner as the other real and personal estate of the county, unless such company commute.

The 18th section provides that the taxes so assessed shall be paid out of the funds of the company, and shall be rateably deducted from the dividends of those stockholders whose stock was taxed, or shall be charged upon such stock if no dividends be afterwards declared.

We now come to the act of 1857, chapter 456, by which the preceding provisions were in some respects materially changed. Section 3 of that act is in the following words: "The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding 10 per cent. of its capital after deducting the assessed value of its real estate, and all shares of stock in other

corporations actually owned by such company which are taxable on their capital stock under the laws of this state, shall be assessed at its actual value in the same manner as other real and personal estate of the county."

From this brief outline of the legislation of the state on the subject of corporate taxation, it will be seen that it has undergone two radical changes. It was first on the property, next on the capital stock paid in, and third, upon its actual value at the time of the assessment; and under each and all of these systems, the obvious intention was to assess property only.

The third section of the act of 1857 was in force in 1859, when the commissioners of taxes, &c., for the city of New York assessed the Bank of Commerce of said city on its whole capital paid in and secured to be paid in, less so much thereof as had been paid out for real estate, and refused to deduct from the amount assessed the sum of $103,000 invested in the stocks of the United States, and which stocks were actually owned by the bank at the time the tax was assessed. A certiorari was issued out of the Supreme Court, on the application of the bank, directed to said commissioners, requiring them to make return thereto, and the commissioners did return thereto the facts aforesaid. And the said court, after hearing counsel, affirmed the proceedings, upon the ground that the tax was really upon the stock of the corporation and not upon the property in which the money paid in by the stockholders was invested. An appeal was thereupon taken to this court. After argument, the judgment of the Supreme Court was affirmed. It was held by the majority of the

court:

1st. That stock in the public debt of the United States, whether owned by individuals or corporations, is taxable under the laws of the United States.

2d. That taxation by the state of property invested in a loan to the Federal Government is not forbidden by the Constitution of the United States, when no unfriendly discrimination to the United States as borrowers, is applied by the state law; and property in its stock is subjected to no greater burdens than property in general.

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