141 Ind. 677 | Ind. | 1895
On August 14, 1893, the county assessor placed in the hands of appellant the following statement:
“Rochester, Ind., August 14, 1893.
“Auditor of Fulton county: Place on the tax duplicate as ‘omitted property’ the sum of $1,500 to Frank H. Terry, town R., and charge up the taxes on the same for the year 1893. J. N. Orr, County Assessor.
“Paid up B. and L. stock.”
On August 21, 1893, the appellee filed with the appellant his written protest against the placing upon the duplicate of said $1,500 of building and loan stock for the reasons: (1) That section 89 of the general tax
On September 27, 1893, the appellee filed his complaint alleging the foregoing facts and asking that the appellant be enjoined from placing said building and loan stock upon the tax duplicate. To this complaint a demurrer was overruled, and this ruling is the only error assigned.
If we should.consider only the reasons given in the protest and in the complaint for injunction we should have to hold them insufficient. We do not think, in the first place, that the statute cited attempts to, or does, in fact, “expressly exempt building and loan association stock from taxation;” nor do we think that if such attempt were made it would be in compliance with the terms of the constitution.
Article X, section 1, of the constitution requires that “The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious, or charitable purposes, as may be specially exempted by law.” Certainly it will not be contended that “building and loan association stock” is within any of the classes of property which it is here provided may be exempted from taxation. This stock is not “municipal, educational, literary, scientific, religious, or charitable” property, and so is not of any of the kinds of property that “may be specially exempted by law” from taxation.
As to the third reason given for the injunction, that “no such notice” to appellee as required by statute was given, we may observe that it is not denied that some notice was given. It is further shown that appellee did appear and protest against the proposed assessment; and also, that some time afterwards, at the date of filing the complaint, the assessment had not yet been made, the allegation being, “that notwithstanding the protest the defendant is threatening” to place upon the tax duplicate for the year 1893 said $1,500 of building and loan stock. Where a party has actual notice, and voluntarily enters his appearance to resist a proposed action against him, that is sufficient to confer jurisdiction.
The reasons given in the complaint being insufficient, it remains to inquire whether the facts alleged were such as to authorize the granting of the injunction.
From the complaint it appears that the stock here in question is “paid up building and loan stock.”
"Building, loan-fund and saving associations shall be listed and assessed in the following manner: Before the first day of June of each year, the secretary of every building, loan and savings association shall file with the auditor of the county in which such association was organized, a duplicate statement verified by said secretary, showing the amount paid into said association by shareholders upon shares of stock issued by it up to the first day of April preceding, and then outstanding, and also the amount loaned up to said date, to shareholders, and secured by mortgage upon real estate listed for taxation.
"And the auditor shall deliver said statement to the proper assessor, who shall proceed to assess said association for taxation with the amount shown to have been paid into said association up to said first day of April upon outstanding shares of stock, less the amount shown by the statements to have been loaned to shareholders upon said mortgage security so listed for taxation, and neither said association nor the shareholders therein shall be liable to other taxation upon said shares of stock.” Acts 1891, p. 233, supra, section 8507, R. S. 1894.
Whether, as contended by appellant, this statute is unconstitutional as to all shares of stock, including those upon which shareholders have obtained loans from the association, secured by mortgage upon real estate listed for taxation, as well as those shares held by creditors of the association, we need not inquire, since the question before us relates altogether to the latter class of stock.
It may be observed further that there is here no question of the assessment of notes taken by the association on its loans. It is not clear, therefore, that the Illinois case cited by appellant is in point, which holds a similar law unconstitutional. People’s Loan, etc., Assn. v. Keith, 39 N. E. Rep. 1072.
Nor, indeed, are we able to see, as at present advised, why such a method of taxation, so far as borrowers' stock is concerned, should be held obnoxious to the requirement of the constitution, that “the General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal.”
As said by counsel for appellee, this provision of the
But the question as to assessment of borrower’s building and loan stock, and also that as to assessment of notes or other evidences of credits held by building and loan associations, are not before us in this case, although ably and earnestly argued by counsel on both sides; and we must, therefore, decline to pass upon any propositions relating to such matters.
The question in the record is, whether paid-up building and loan stock, in other words, stock held by investors, as debentures, or as evidence of money paid or loaned by them to the association, is taxable, notwithstanding the statute for the assessment of building and loan associations. We think such stock is taxable. If we thought otherwise, we should have to. consider the statute itself unconstitutional.
In this connection counsel for appellee, in their additional brief, have laid down three propositions, which we think in point and to which we fully agree:
“First. This court will not decide a constitutional question when the cause can be decided upon its merits without such decision. Hoover v. Wood, 9 Ind. 286; Parker v. State, ex rel., 133 Ind. 178.
“Second. A statute may be constitutional in part and unconstitutional in other parts. State, ex rel., v. Blend, 121 Ind. 514; State, ex rel., v. Gorby, 122 Ind. 17.
“Third. When a statute is susceptible of two construe
The Legislature, in the enactment of the statute for the assessment and taxation of building and loan associations, had in mind, as we think, building and loan stock, properly so called; that is, stock held by those who make stated payments to the association in return for money borrowed by them from the association, and, by such borrowers, invested in the building or buying of homes. Whether the method provided in the statute for the assessment of building and loan associations is, as to such borrower’s stock, constitutional, we need not, as we have already said, inquire, as the question is not here.
We are of opinion, however, that the statute did not contemplate that the money loaned to such associations and evidenced by debentures, called also shares of stock, should not be taxed as credits held by such stockholders. -Such shares of stock are of the apparent value of the money paid upon them to the association, and should be taxed accordingly, as any other credits.
Counsel here intimate that if paid up stock is taxable, •so also should stock be which is partially paid up. “It would be absurd,” say counsel, “to say that stock half paid up should not be assessed for taxation and that fully paid should. Surely, if $1,000 is invested, certificate issues showing full payment and is taxed, $500 invested in a $1,000 certificate should not escape.”
In this we quite agree with counsel. Whether the stockholder who has loaned his money to the association, and has received certificates of stock in evidence of such loan, has in fact paid in full for the stock, or has made
If however, the stockholder were a borrower and not a lender, his stock would represent, not money due to him as a creditor of the association, but rather money due from him as a debtor to the association. Or, at most, if the borrower’s stock represented a credit due him, the money borrowed on the stock would be a debit which, as held in Florer v. Sheridan, Admx., 137 Ind. 28, he might-deduct from the credit.
But the stockholder who is simply a lender to, a creditor of, the association, as appellee, holds his stock in evidence of such credit, just as he might hold the promissory note or other obligation of the association. Whether, in fact, he holds a certificate of stock or not, or whatever other evidence there may be of such credit, can make no difference. He is an actual creditor. The law looks through names and sees the things which the names stand for. Such a credit, therefore, by whatever name it may be called, or however it may be evidenced, is taxable under the constitution as any other credit. Any law which should pi’ovide otherwise would be invalid. All building and loan stock, therefore, unless it be that held by borrowers, is taxable. Under the law, then, the stock or shares of stock in question are to be assessed and charged to the holder of the stock or shares of stock and the tax thereon paid by him and not by the association.
The judgment is reversed, with instruction to sustain the demurrer to the complaint.