Attorney General v. Bank of Cape Fear

40 N.C. 71 | N.C. | 1847

The information is filed to ascertain the fund out of which the bank shall pay the tax imposed by the act of incorporation. The charter was granted in 1833, and amended in 1836. Section 11 provides, "that a tax of 25 cents on each share of stock owned by individuals in the said bank shall be annually paid into the Treasury of the State, by the president or cashier of said bank, on or before 1 October in each year." The bank soon went into operation, and from that time to the filing of the information has paid the tax out of the common corporate funds, without reference to the fact that profits were or were not made. The information charges that the tax was designed by the charter to be paid and collected from the individual stockholders, and that the State, as a stockholder, was to suffer no diminution of dividends of profits by reason of the tax; and by the construction placed on the acts by the bank, and their practice, the State has been deprived of a large (72) portion of the profits to which it is entitled as a stockholder. The information does not seek an account of the taxes wrongfully, as it is alleged, paid heretofore out of the dividends of the State, but asks that the true construction of the act may be declared and established, and that the tax may hereafter be charged on each share of stock held by individuals, and not on the mutual profits, as heretofore erroneously practiced. From the wording of the acts it might well be doubted what was the expectation of the Legislature as to the fund out of which this tax was to be paid: whether out of the general corporate funds or out of the dividends of profits arising from the stockholders by the individual stockholders, to the exemption of the stock owned by the State; in other words, whether the State, as a joint corporation, was bound to bear any portion of this burthen. We are of opinion that the construction given to the contract by the parties, and under which the tax has been heretofore paid by the bank and received by the State, is the true one. Where by the penning of a statute its meaning is rendered doubtful, long usage is a just medium by which to expound it, upon the maxim that the jus et norma loquendi are governed by usage. Shepherdv. Gosnold, Vaugh., 169. This rule governs in the construction of the fundamental law of the land, the Constitution of the United States. A contemporary exposition practiced and acquiesced in for a period of years fixes the construction. Stewart v. Laird, 1 Cranch, 299. But if such usage is contrary to the obvious meaning of the words of the act, it is not to be regarded. Dwarris' St., 703. Vaugh., supra. This is also a rule in the construction of contracts. For near sixteen years the tax has been paid by the bank out of the corporate funds, and not out of the profits accruing to the individual stockholders from (73) their stock. This, then, is a contemporaneous exposition made by the parties themselves, and, unless shown to be contrary to the obvious intention of the Legislature, must be considered the proper one. After such an acquiescence, the laboring oar is upon the State to show it is wrong.

A similar question to the present arose, upon the 11th section of the charter granted by the State to the Cape Fear Bank in 1814. That section is: "A tax of 1 per cent per annum shall be levied on all the stockholders in said bank, except on the stock holden by the State, which shall be paid to the Treasurer of the State, by the president or cashier of the bank, on or before the first day of October in each and every year." The State complained then, as she does now, that the tax had been paid, but in the account kept by the officers of the bank it was charged, not against the individual stockholders in respect of their stock, but against the whole corporation; whereby, in the dividends of profits, the State was made to bear its proportion of the tax. This was alleged to be erroneous, and the information sought to rectify the accounts, and for other purposes. In deciding the case it was necessary for the Court to put upon clause 11 such a construction as they thought it required.S. v. Bank, 21 N.C. 216. In the exposition of the clause the same questions presented themselves as here. "The doubt is," say the Court, "whether, on the wording of the charter, the tax is payable by the corporation out of the common fund, the number of private shares being the measure of the tax, or whether it is payable out of the private shares only." The decision is that the tax was payable out of the common fund. In the charter of 1833 the phraseology of the taxing clause is very little varied. There is nothing in it authorizing a different exposition. The material difference are, that by the charter of 1814 the tax was 1 per cent per annum, to be levied on all the stock (74) holden by private individuals; in the charter of 1833 the tax is 25 cents on each share of stock owned by individuals. And in each it is to be paid annually by the president or cashier of the bank; and in neither is there any provision made as to the distinct fund out of which the officers of the bank are to make it. All the reasons which led the Court to the conclusion to which they came in the former case, as to the appropriate fund, apply here with equal force. There is in the charter of 1833 the same want of explicitness, and here, as in the case referred to, the effort is to throw upon the individual corporators a burthen imposed upon the corporation itself as a whole. Although this may be done by the Legislature on granting the charter, the enactment must be clear. We are aided in our construction in the present case by the charter granted at the same session to the Bank of the State of North Carolina, in which there is an explicit clause upon this subject. The 13th section says expressly that "each share owned by individuals shall be subject to the annual tax of 25 cents, which shall be reserved out of the profits as they accrue, by the cashier, and placed to the credit of the State." That shows that the tax on each share is dependent on the profits of it; so that when there are no profits, there is no tax. But in the charter of the Bank of Cape Fear the tax is payable at all events, and no fund is specified out of which it is to be paid, and it is added in the taxing clause, "that the said bank shall not be liable to any further tax," which shows it was a common charge upon the corporate funds. The rule adopted by the defendant, as soon as it went into operation, was in conformity to this opinion, and has been acquiesced in by the State, through its officers ever since, until the filing of this information.

PER CURIAM. The information is discharged.

Cited: S. v. Giersch, 98 N.C. 727; Gill v. Comrs., 160 N.C. 190.

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