11 Or. 67 | Or. | 1883
By the Court,
The act of October 26, 1882, entitled “An act to define
. All szzbjectg, things as well as persons, over which the power of the state extends, may be taxed. “The sovereignty of the state extends to everything which exists by its own authority or is introduced by its permission.” (Marshall, C. J., McCulloch v. The Bank of Maryland, 4 Whea., 429.) The act of October 26, 1882, taxes mortgages as such as
We have seen that the mortgage contract is governed solely by the laws of Oregon, no matter where the parties to it may reside. If, therefore, an act taxing mortgages impairs the obligation of contracts, it impairs such obligation in every case of mortgage, irrespective of the residence of the parties to it. In considering this part of the case, therefore, the question of residence or citizenship cannot figure. It has already been shown that the state has the power, abstractly, to tax mortgages, as such. It follows that the only ground on which it can be claimed that the
Counsel for the appellant cite the case of the State Tax on Foreign Held Bonds, 15 Wall., 800. If the question presented in this case was the power of the state to tax the mortgage debt it would be difficult, on principle, to distinguish that case from the present; for the petition of the respondent alleges that the debt was payable in New York. That question, as has been said, does not now distinctly arise. It may be observed, however, of that case that we feel less hesitation in expressing some difficulty in fully appreciating the grounds on which it rests, since a very strong minority of the court were of a contrary opinion. There is some obscurity in the application of principles, such as were announced in Baldwin v. Hale, 1 Wall., 223, and like cases, to the case then in hand. It does not clearly appear that the law of Pennsylvania had an extra territorial operation on contract obligations in New York. There is some ground to say that it operated on them in Pennsylvania as they actually existed 1;here. When the citizen of
In Duer v. Small, 4 Blatch. C. C., 265, it is said: “The owner of property within the limits of a state, no matter whether the property be real or personal, and no matter where the owner has his domicile, has a right to call upon the government of the state to protect such property by its laws, and by its officers acting under such laws. But such protection cannot be afforded unless means, by the way of taxes, are furnished to afford the protection. * * * If a non-resident does not wish to pay for such security and protection, he can withdraw his personal property from the state,.and thus free himself from such payment. There is no law which compels him to put his property under the protection of the laws of a state of which he is not a citizen or resident. But while he asks and demands protection from the laws, there is no good reason why he should not pay for it—no good reason why he should demand that the property of the resident should pay for it.”
Some of us have considerable doubt whether the bill is not properly a bill for raising revenue, and therefore in violation of sec. 18 of art. 4 of the state constitution, because it originated in the senate. But it is not sufficiently clear that a law which merely declares that certain pi’operty theretofore exempt from taxation, shall thereafter be subject to taxation, is strictly a law for raising revenue. We do not feel warranted, therefore, as at present advised, in declaring the law unconstitutional on this ground.
The senate journals do not show that the bill was read on
Judgment affirmed.