104 Pa. 89 | Pa. | 1883
delivered the opinion of the court, October 2d 18S3.
The taxes, which are the subject of tin's contention, are claimed by the Commonwealth, under the 17th section of .the Act of June 7th 1879, and its supplement of June 10th 1881, upon the bonded indebtedness of the Lehigh Valley Railroad Company, for the years 1880 and 1881.
The (Dompany did not deduct, the tax of four mills from the interest upon its mortgage debt, and pay the same into, the treasury, for the years stated, as provided by the acts of 1879, and 1881, but paid the interest in full, to.its creditors, as the same matured.
The Auditor General, therefore, settled an account against the company, for a four-mill tax in each year, upon the entire
From these settlements appeals were taken, under the provisions of the Act of 1811, to the Court of Common Pleas of Dauphin County. These appeals, with two others, entered by the Lehigh Coal and Navigation Company, involving substantially the same questions of law and fact, were submitted to the court below, without the intervention of a jury, under the Act of April 22d 1874, and were tried together, but one opinion being filed, upon which judgment was entered in each case.
As these four causes have been presented and argued here together, one opinion only will be filed, upon which judgment will be entered in each of the several cases as below. >
These several writs of error, having been taken to judgments entered under the Act of 22d April 1874, this court, under the ruling of Jamison v. Collins, 2 Norris 359, and Lee v. Keys, 7 Norris 175, “ can hear and determine only questions of law, arising upon bills of exceptions to the rulings of the judge, relating to the evidence, or to the law of the case ; we cannot go behind his findings of fact, except where in a common law trial before a jury, the assignment- of error is. such as can be heard and determined by this court; the writ of error brings up no question as upon motion for a new tiial.”
On the part of the company, it is contended that the taxes sought to be collected are paid through other channels, and that the State, having received them once, is not entitled to recover them again. Whether, or not, the debt now in suit has been, or is presumed to have been paid, is a question distinctly presented by the facts found, and stated in the decision of the court as follows :—
“ VII. For the year 1880, the commissioners of every county in the Commonwealth made returns to the revenue commissioners, as required by law, of the valuation of all mortgages, money owing by solvent debtors, etc., within then-respective counties, which returns were adopted by the said revenue commissioners, and a record of such valuation was by them transmitted to -each county, upon which valuation the State tax upon mortgages was assessed. This valuation remained unchanged for the year 1881, and no other valuation or assessment of mortgages, for the purpose of state taxation, -was made for 1880, or 1881.”
“ VIII. The taxes assessed upon said valuation, and record for the years 1880 and 1881, have been paid in full to the Commonwealth.”
Dismissing, therefore, the second assignment of error, and excluding from our consideration, the circular letters referred to, we have remaining as the basis of the finding of the court..
1. The official return or report of the county commissioners of each county in the Commonwealth, to the board of revenue commissioners, for the year 1880, in tabular form, the names of the several wards, boroughs, and townships in the several counties of the Commonwealth ; the amount at which all the personal property, and all other matters and things therein, made taxable by the laws of this Commonwealth for state purposes, were valued and assessed, and the gross amount of taxes levied and assessed thereon for state purposes.
2. The valuation of the several counties of the Commonwealth, as fixed and adjusted by the board of revenue commissioners, October 20th 1880, to be and remain as the valuation of the property of the said counties, until the next meeting of the board as provided by the acts of 29th ApriL 1844, 30th April 1864, and 24th May 1878.
3. The testimony of the state treasurer, showing actual payment, by the several counties, of the state taxes, according to, and upon the said adjustment for the years 1880 and 1881.
The official report of the county commissioners, in the several counties, and the adjustment of the board of revenue commissioners, contain, inter alia, the amount of the valuation of “ all mortgages, money owing by solvent debtors, whether by promissory note, penal, or single bill, bond or judgment, also all articles of agreement and accounts bearing interest, owned ■or possessed by any person or persons whatsoever (except notes ■or bills for work or labor done, and all obligations given to banks for money loaned and bank notes), and all public loans ■or stocks whatsoever, except those issued by this state or the ■United States, and all moneys loaned or invested on interest in any other state, and all other moneyed capital in the hands of individual citizens of the state ; also, “ the tax on the same as ■the rate of four mills on the dollar.”
It is contended, on the part of the Commonwealth, that the testimony admitted is irrelevant; that the valuation and assessments made and the payment of taxes established, by the ■evidence, were under the Act of April 29th 1844, whilst the claim of the Commonwealth, now in suit, is for taxes upon the bonded indebtedness of the company imposed by the Acts of
It certainly must be conceded, that the tax in question, can in no sense be considered as a tax upon the corporation, its property or its franchises: it. is upon the corporation’s indebtedness, in the hands of its creditors; a tax upon the property of individual citizens of the state. It is for the law-making power to select the subjects of taxation ; in the exercise of this power the legislature may perhaps impose a tax, not only upon what the citizen owns, but also upon what he owes. This question we will neither discuss nor decide. The act of 1879 is so clear in its provisions, as to preclude the possibility of doubt as to its construction ; the tax of four mills is expressly upon “ mortgages,” «fee., “ owned,” «fee., “ possessed by,” &c., and no distinction is taken, or discrimination made, between a corporate and an individual indebtedness, except that <£ all corporations paying interest on loans, hereby taxed for state purposes only, shall deduct the said tax from the said interest, and pay the same into the state treasury.” The tax is imposed indiscriminately, upon all mortgages, «fee., in the hands of the owner or possessor, but the corporation is made the collector of the tax upon the corporate loan. This was the construction put upon the Act of 30th April 1864, by 'this court, in the case Maltby v. R. R. Company, 2 P. F, Smith, 148, and the reasons there assigned are equally applicable here.
The Act of 1881, in its first section, provides that all mortgages, money owned by solvent debtors, «fee., shall be taxable, at the rate of four mills, «fee., for state purposes, in the hands of the owner, or possessor, in precisely the same language of the Act of 1879, and in the second section it is further provided, that££ all corporations paying interest on a loan or loans which are taxable for state purposes,” «fee., “ shall report,” «fee., “the amount of such indebtedness,” «fee., “ and shall pay into the state treasury four mills upon every dollar of such indebtedness so returned,” «fee.; “ and the said tax may be deducted, by the corporation paying the same, from the interest,” «fee. It certainly was not the intention to tax the debt in the hands of both debtor and creditor, allowing the debtor to defalk from the interest, as this would certainly be a double taxation against the creditor upon precisely the same subject.
If then the corporation is to be charged as a collector only, it follows, that if the taxes which it was charged to collect, have been paid through other agencies of the government, the corporation stands discharged therefrom. ■ It cannot be held for collection of that which has been collected, for payment- of
The Act of 29th April 1844, was the beginning of our present revenue system; that Act repealed all laws theretofore passed for levying taxes for state purposes; it designated, in great detail, the various subjects which should “ be valued and assessed,” and “ subject to taxation,” for state purposes; among these in the 32rd section we find “ mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment, also all articles of agreement and accounts, bearing interest', owned or possessed by any person or persons whatsoever, except notes or bills, for work and labor done, and bank notes.” By the 34th section of the same Act, the county commissioners of each county were required, annually, at the time of making county rates and levies, to assess these subjects, with many others designated, “for the use of the Commonwealth, three mills on every dollar of the value thereof.”
By the 17th section of the act of 7th June 1879, and the 1st section of the act of 10th June, 1881, the same subjects enumerated above in the Act of 1844 are merely “ made taxable, for state purposes, at the rate of four mills on every dollar, of the value thereof.” The words of the Act of 1879, and of 1881, in the clauses referred to,' which apportion the subjects of taxation and fix the rate to be imposed, are identical, and are substantially equivalent to the words of the corresponding clause, in the act of 1844, whilst all provide that the rate shall be “upon every dollar of the value thereof.”
Thus, therefore, it appears that the things made taxable, under the Acts of 1879 and 1881, were taxable under the Act of 1844, upon the same basis of valuation, for the same purpose; the rate only is different. The phrase, “ every dollar of the value thereof,” has acquired a well established signification under our revenue system; it means simply the actual value, or worth. The 4th section of the act of 15th May 1841 requires the assessoi's to value “ all objects of taxation, according to the actual value thereof, and at such rates and prices, for which the same would separably bona fide sell.” The oath of office, which is administered to the assessors, under the 9th section of the Act of 27th July 1842, obligates that officer to value all taxable property, at the rate or price which he shall, “after due examination and consideration, believe the same would sell for, if sold singly and separately, at a bona fide sale, after full public notice.” The 3d section of the Act of 15th May 1841, provides, that if any assessor, or assistant assessor, shall knowingly and intentionally assess, rate or value any property “ at more or less than he shall know’ and believe the just cash value
The Legislature has thus frequently defined the phrase “ every dollar of the value thereof ” to signifying actual value, and the construction which is deducible from the continued, general and uniform practice and understanding throughout the Commonwealth, is the same. That the same signification was in the legislative mind, at the passage of the Acts of 1879 and 1881, is made clear, by the fact, that shares of stock in banks and savings institutions, are put in the same class with “mortgages, money owing by solvent debtors,” &c., are also, and in like manner, made taxable, at the rate of four mills “ upon every dollar of the value thereof,” and that value is defined by the same Act to be “ the actual value in the market where located.” It can scarcely be believed that “the value thereof,” thus generally and indiscriminately applied to both corporate and individual loans, to bank shares, agreements and accounts, must be construed to have two altogether distinct and different significations, when used but in a single connection.
If, therefore, this loan is taxable in the hands of resident owners, at its actual value, a legal ascertainment of that value is essential to the assessment of a valid tax. The tax of a citizen is the result of the rate, applied to the value of the property which he owns, and he is not taxed until the rate is thus applied, by some legal mode of adjustment; no duty of payment arises, no proceeding to collect can be sustained, until the tax is thus created. Is there any provision in the Act of 1879, or the amendment thereto of 1881, for the making of this valuation ? If there is none, these Acts cannot constitute an independent scheme for the taxation of corporate loans, but must be aided by the machinery of the Act of 1844, and if the latter Act is not fully supplied' by the former, no implication of repeal could arise, at least, as to the parts not supplied. We can find no such provision in the Acts of 1879 or 1881.
It is contended, however, that the report to the Auditor-General, required by the amendment of 10th June 1881, when accepted and acted upon by the accounting officers, provides an estimate, which may form the basis of an apportionment, and comprehends all the essential processes involved in an
It is a sufficient answer to this suggestion, however, that the report, which is required, is not of the actual value, — it is of the amount of the indebtedness ; and the reports which were made, although in strict compliance with the requirements of the Act, not only do not purport to be valuations, but expressly state that they are not, and recite that the bonds bear different rates of interest, and arc of different values. Besides, the tax is in no sense one against the corporation, but against its creditoi’s, as individual citizens of the State, and we cannot see how, or upon what principle of law, the report of the corporation, as to the amount of its indebtedness, could be regarded as an assessment, binding upon them, who have been made no parties to it, and have no control over it. There is no community of interest between a debtor and his creditor ; their interests are ordinarily adverse. Certainly that cannot be regarded as a valid assessment of an ad valorem tax which is made by persons whose interests are adverse, who are under no official oath or obligation, where the person charged has no notice, no right to interfere for his own protection if he had notice, and no appeal; and when, in fact, there is no adjudication as to actual value.
The report is necessarily conjectural, not even approximate ; the residence of the holders is a fact of which the corporation is most likely to be ignorant, as the reports made abundantly show; negotiable securities pass current, and the corporation debtors cannot know the hold.ers. If the report be made of such as are held by resident owners, to the extent' only to which they are known to be so held, the danger of escape from taxation, is thereby increased, beyond that which existed under prior legislation, and to avoid this escape was the purpose of this legislation. The present case affords a striking illustration of the fact. The report of the Lehigh Yalley Railroad Company, for the year 1880, makes the following exhibit:
*103 Held by residents of Pennsylvania . . . $8,874,000
Held by non-residents of Pennsylvania . . 839,000
Held by persons whose residence the company has been unable to ascertain (of which amount $6,437,000 were issued in London, and, so far as we know, none have been returned to this country).......$12,963,000
Held by corporations of Pennsylvania . . . 2,265,000
Held in trust for persons whose residence is unknown ....... 596,000
Total .... $25,537,000
Thus it appeai-s that more than one half of the entire loan is held by persons whose residence is unknown to the corporation. The treasurer of the company states in his report that the interest coupons are payable to the bearer, and negotiable ; that they are seldom presented for payment by the holders of the bonds to which they were originally attached, but usually by bankers, brokers, and others, who frequently do not know the name or residence of the holder of the bond. Moreover, if this report was intended to be made at the end of each year as a basis of taxation and exemption from other taxation for that year, and not the ensuing year, as seems to be conceded in the argument, on both sides, and in the opinion of the court below — then, if the learned counsel of the Commonwealth are correct in their view of this case, the concluding clause of the section under consideration becomes abortive and of no effect.
The clause referred to reads as follows : “ And the said tax may be deducted by the corporations paying the same from the interest on such indebtedness, whereupon such indebtedness, whether secured by bond, mortgage, judgment, or otherwise, shall be exempt from other taxation in the hands of the holders thereof.”
It is clear that corporate loans can only be made liable to “ other taxation” through the ordinary methods of our revenue system. And as the whole process of local assessment must necessarily be fully completed and ended, in each year, before the period of default arrives, on the 15th January, in the ensuing year, how could they then be made liable to “ other taxation?” If they have not already been listed and rated, in the general local assessment, they must of necessity, and at all events escape taxation for county and municipal purposes for that year, whether default in obtaining exemption be made or not.
We incline, however, to the opinion, that the first tax of four mills, under the Act of 1879, would be for the year 1880, and the second for the year 1881 ; that as the Act of 1881, was
Nor can we agree with the Commonwealth’s counsel that the settlement, made by the accounting officers of the state, under the Act of 1811, can be regarded as an assessment. Such a settlement must, of course, be for taxes which the corporation collector failed to collect. As it is the assessment which supports the tax, it must precede the levy, and the levy must precede the settlement. If the settlement is the assessment, then the case is anomalous in this, that we hold the collector for a default which confessedly^ could not exist ; for, how could the collector, collect a tax which had not been previously assessed ?
We can scarcely suppose, that the second section of the Act of 1881 proceeds upon the erroneous assumption that the actual value of corporate loans upon which interest is paid, however assessed, in all cases, will be rated at par; we are inclined to construe that section, as fixing the price of exemption from all other taxation at four mills upon every dollar of the indebtedness, held by resident owners, in contra-distinction to the tax of “four mills upon every dollar of the value thereof ” in the hands of the creditor. But it is certainly very clear that the terms of exemption and the tax cannot both he enforced, and that it was not the intention that they should. We are of opinion, therefore, that the Acts of 1879 and 1881, taken together, or separately, cannot be regarded as an independent system; they lack the machinery for their own enforcement, but if taken with other previous enactments, providing that machinery, they have their proper place in our revenue system.
Erom the date of the passage of the Act of 24th April 1874, until the 7th June 1879, the system for collection of state taxes upon corporate bonds, through the agency of the corporations themselves, was suspended ; the Acts of 30th April 1864, 1st May 1868, and 21st March 1873, had all been repealed. During that period, corporate indebtedness was admittedly only taxable foi slate purposes under the Act of 1844, and collec
The valuation and returns, thus contained in the triennial assessment of 1879, and the adjustment and apportionment of state taxes made thereon, by the board of revenue commissioners, to the several counties, on the 20th October 1880, continued unchanged through the years 1880 and 1881.
If we are correct in the views wo have expressed, it follow's, that as there was no other means of assessment provided by law', it was the duty of the local assessors, in making the general assessment in 1879, to value and assess corporate bonds, wherever found, in the hands of resident owners. And as in the discharge of that duty, the assessors acting as officers of the Commonwealth did make an assessment, purporting to embrace these several objects, made due and proper return thereof, which was accepted, and acted upon, by the revenue officers of the state, we must assume in such an action as this, brought by the Commonwealth, to recover taxes, that the officers of the law, acting under the obligation of an oath, performed their full duty in the premises, that their return is full and true, and embraced not only all classes of subjects, but all objects taxable by law.
We are thus irresistibly brought to the conclusion that the corporate loan of the Lehigh Valley Railroad Company, in the hands of resident owners was, or must be assumed to have bee embraced in the triennial assessment of 1879, which was ad
If this conclusion is correct, the state has already received their claim in this suit, through the ordinary channels of collection, and is not now entitled to recover the same debt.
We can see no constitutional or other difficulty in the way of obliging the officers of corporations, municipal or private, by appropriate legislation, to assess and collect taxes upon their corporate loans or stocks. This method of reaching subjects, capable of successful concealment, and liable to escape the notice of the most vigilant assessor, has, for many years, been recognized by our courts as a valid exercise of legislative power. It was applied under the 42nd section of the Act of 29th April 1844, to the indebtedness of municipal corporations, in the following provision:
“It shall be the duty of the treasurer of each county, incorporated city, district and borough of this Commonwealth, on the payment of any dividend or interest to any holder or agent claiming the same, on any scrip, bond or certificate of indebtedness, issued by said incorporated city, district and borough aforesaid, to assess the tax herein made and provided for state purposes, upon the nominal value of each and every said evidence of debt; said tax to be deducted by the said treasurer, on the payment of any interest or dividend aforesaid, and the same shall be held by him, until paid over to the State Treasurer; and the said treasurers shall be subject to the same penalties and liabilities now prescribed by existing laws in relation to taxes on bank dividends.”
It was not until the Act of 80th April 1864, however, that the system was applied to the loans and indebtedness of private corporations. By the last named Act it was provided that “ the officers of incorporated companies, which pay interest,” &c., shall before payment of the same, retain from the “ depositors, bondholders or creditors, the amount of state tax, imposed by existing laws, and shall pay over the same to the State Treasurer.” It was further provided, however, as follows: “ And that all the laws regulating the mode of such payment, in regard to treasurers of counties, cities and boroughs, be and the same are hereby extended to the financial officers thereof, and they are hereby required to collect, and pay over the taxes due to the state, on such payments of interest, as provided in this section to be done by officers of incorporated companies ; and in case of any officer neglecting, or refusing to retain the same, he shall become personally liable for the amount.”
Thus it will be seen that the 42nd section of Act of 1844,
A special method of assessment being thus provided, the subjects embraced in it, are of course, withdrawn from the ordinary methods pursued under that Act, and the regular general assessment could not be presumed to contain what did not legitimately fall within its range. Whilst the presumption is legitimate that the accepted return of the assessors is full and true, as to all matters falling within its scope, no presumption could arise that the officer transcended his duty, even if the return by the generality of its expression was susceptible of such a construction. In such a case, a return of “ all mortgages, moneys owing by solvent debtors,” &c., would be construed to cover such mortgages, &c., &c., only as came within the range of the assessor’s duty. As this provision of the law of 1844, was incorporated into the Act of 1864, and thus extended to the indebtedness of incorporated companies, the latter Act also possessed the means of its own enforcement. It is urged, however, that the provisions of the Act of 1844, were only extended to the financial officers of corporations, so far as “ they regulate the mode of payment,” and that the mode of payment does not necessarily embrace the power and process of assessment. Such has not been the construction which this court has put upon the Act of 1864. That Act was first considered by this court in the case of Maltby v. R. & C. R. R. Co., 2 P. F. Smith 140; and, although the reasoning of the case is not fully developed in the opinion, it proceeds upon the assumption that the assessment under the Act of 1864, was upon the par or nominal value under the provision incorporated from the Act 1844, and thus the phrase “ the laws regulating the mode of payment,” was construed to embrace the whole process of assessment and collection. The question was fairly raised, however, elaborately discussed, and distinctly decided in the case of the Commonwealth v. Phœnix Iron Company, heard at the January Term 1868, but not reported. In that case, Justice Agnew in delivering the opinion of the court says:
“ We think the valuation and assessment, according to the thirty-second section of the Act of 1844, was not an essential pre-requisite. The third section of the Act of 30th April 1864, under which the return was made, provides that all the laws regulating the mode of such payment, in regard to treasurers of counties, cities, and boroughs, shall be extended to the financial officers of the companies. The forty-second section of the Act of 1844, regulating the duties of such treasurers, directs them to assess the tax upon the nominal value of the*108 evidence of debt, and deduct it from the interest or dividend, and pay it over to the State Treasurer. Thus the law itself fixes the measure of valuation at the par value of the debt.”
This was followed by D. L. & W. R. R. Co. v. Commonwealth, 16 P. F. Smith 69, where Thompson, C. J., following the previous cases, says : “ The right of the financial officers of the corporation to retain the three-mill tax, under the Act of 1811, out of the interest payable to loan or bondholders of the company, under the Act of 30th April 1861, without an assessment by the County Commissioners or assessing officers, was maintained to be undoubted in Maltby v. The Reading and Columbia Railroad Co., 2 P. F. Smith 110, and re-asserted in The Commonwealth v. The Phœnix Iron Co., not yet reported ; the question is therefore settled.”
The laws regulating the mode of payment, in regard to treasurers of the counties, cities, and boroughs, as extended to the financial officers of incorporated companies, under the Act of 1861, therefore embraces all the processes of assessment and collection.
The Act of 1861 was, however, repealed by the Act of May 1st 1868, which imposed a specific tax of “five per centum upon every dollar of interest paid,” which percentage the financial officers were required to retain from creditors. The valuation is here implied from the terms of the Act, it is specific and determinate, and therefore enforceable. The Act of 1861 had the same effect upon loans of incorporate companies, which the Act of 1811 liad upon municipal loans ; both were withdrawn from the ordinary processes of the revenue system. As there was no express provision to that end, however, it is not improbable that some confusion resulted in general practice, and therefore the Act of 1868 provided “ that the principal sums, from the interest of which the said tax is deducted, shall not be assessed and taxed for State purposes, in- the valuation of personal property, or returned by County Commissioners to the Board of Revenue Commissioners.” Thus, the difficulties which had then doubtless occurred under previous legislation, and which have arisen here, were averted.
But the Act of 1868, was repealed by the Act of 21st March 1873, which contained similar provisions; this was in turn repealed by the Act of 21th April 1871, which repeal suspended that form of collection untiL the passage of Act of 1879. Neither the Act of 1868, or that of 1873, were ever brought before this court for construction upon the questions involved here, and they are therefore unimportant in this connection.
We are therefore of opinion that the court below was correct in its conclusions upon this branch of the case. Other
Tiie judgment is affirmed. _