70 Miss. 485 | Miss. | 1892
delivered the opinion of the court.
On the sixth day of October, A.D. 1891, the state, upon the relation of its district attorney, exhibited its petition for mandamus against W. T. Matheney, who was then assessor of Copiah county, to compel him to place upon the assessment-rolls of the county for the then current year, as the property of William Oliver, deceased, forty-three shares of the capital stock of the Mississippi Mills, an incorporated company doing business in said county, and to assess to the said company 301 shares, the same being the balance of the stock in said company; and also to return said stock as the property of said estate of Oliver and of the company, which had escaped taxation for the ten years next before the year 1891. The petition alleges that said stock is, and during all
The prayer of the petition is that a mandamus may issue to the assessor, commanding him to assess the estate of William Oliver with the market value of forty-three shares of the capital stock of the Mississippi Mills, and to assess to the company its whole stock of 344 shares, less the forty-three shares assessed to the estate of Oliver.
By the act of incorporation of the Mississippi Mills, its capital stock was fixed at $250,000, with the right of the stockholders to increase it to $1,000,000.
The thirteenth section of the charter is as follows: “ That the real and personal property of' said company shall be subject to the same taxes, and to be assessed and collected in the same way, that the real and personal property of individual citizens is assessed and taxed, and not otherwise.”
By an act of the legislature,.approved April 1,1872 (Laws, p. 65), it was recited that great advantage would accrue to the state by the encouragement of manufactories; and, to that end, it was provided that the state would exempt from taxation for the period of ten years all companies not then in existence, whose capital stock should be not less than $10,000 paid in; and by an act, approved April 17, 1873, the provisions of the act of April 1, 1872, were extended to the Mississippi Mills, and made a part of its charter.
The following are some of the provisions of law in reference to taxation as found in our codes: b
“ The president and cashier of any bank in this state, or other joint-stock company, the capital stock of which is tax*495 able, shall, on or before the first clay of June in every year, deliver to the assessor of the county in which said bank or company is located, a written statement, under oath, of the capital stock paid in, and its market value, except such as is not liable to be taxed; and, oh failure to furnish such statement, the tax shall be assessed on the whole capital authorized by the charter.” Code 1880, § 498; Code 1892, § 3758.
“All incorporated banks or other companies liable to taxation on their capital stock, shall be assessed for said stock in the county in which the principal office or place of transaction of business is situated; and, if there shall be no such office or principal place of business, then in the county or counties in which the business of such company shall be carried on.” Code 1880, § 473; Code 1892, § 3750.
“ When the assessor shall discover any persons or property that have escaped taxation in former years, he shall assess such persons and property for such former years, distinctly specifying the fact of such escape and discovery by him on a page or pages of his assessment-roll, separate from the assessment for the current year.” Code 1880, § 486; Code 1892, § 3768.
‘ ‘ When the assessor shall assess for a former year, he shall give notice in writing thereof to the person assessed or whose property is assessed, if such person is a resident of the county.” Code 1880, § 487 ; Code 1892, § 3769.
“ The assessor, after returning his roll, may add any person or thing to it at any time before action by the board.” • • • Code 1880, § 509 ; Code 1892, § 3800.
“ The collector shall assess and collect taxes on all land liable to taxation. left unassessed by the assessor, and on all land that may become liable to taxation before the next assessment-;' and he shall also assess such other persons and property as he may find udassessed by the assessor.” . . .
Code 1880, § 513-; Code 1892, § 3804.
At its meeting in August, the board of supervisors is required to examine the assessment-roll, to hear all objections
The assessor demurred to the petition on many grounds, which will be noted in their order. The demurrer was sustained and the petition dismissed, and, from that judgment, the state appeals.
The first objection argued by counsel in this court (the third in order of the grounds of demurrer) is that the petition asks that the assessor may be required to perform an act which he has no legal power to do. The position of counsel on this question may be briefly stated, thus: The assessor may add to his roll for the current year any person or thing found to have been omitted at -any time before action by the board of supervisors. Code of 1880, § 509. But the board was required by law to complete its examination of the roll at its August meeting, and it must be presumed to have done so. The petition was not filed until October 6, at which time the roll for the current year had passed from the control of the assessor, and it was then the duty of the collector, and not of the assessor, to add persons and property to the roll. Code of 1880, § 513.
The sufficient reply.to this objection is that the petition also sought to compel the assessor to perform a duty which yet rested on him — that of assessing the capital stock of the corporation which had escaped taxation for antecedent years.
The demurrer was, in this view, too broad, and should have been disallowed, if not sustainable on other grounds. But this ground of demurrer is not greatly relied upon by the appellee.
The defense principally relied on is that the corporation has already been taxed upon its real and personal property, and cannot be assessed with its capital stock for.taxation for the following reasons: 1. Because it is protected by its charter from taxation of its capital stock. 2. Because a tax upon its property and also upon its capital stock would be double taxation, and, as such, obnoxious to those provisions of our
The rule is well settled that the words of a charter are to be considered rather as those of the incorporators than of the state; that exemptions, when claimed, must be found to exist from the language employed, construed most strongly against the party and most favorable to the state, and that no exemption not clearly given, or existing from necessary inference, can be allowed. Counsel assumes that the words “ real and personal property,” used in the thirteenth section of the charter, mean real and personal property other than the capital stock or franchise of the corporation; and, having thus excluded these from liability to taxation as real or personal property, finds an implied exemption of it from taxation upon the rule that the legislature, having stipulated how the real and personal property should be taxed, thereby bound the state not to tax the franchise. This construction carries the rule expressio unius est exclusio alterius beyond all reasonable limits, and its application would be to subvert or ignore the fundamental principles of construction of charters.- "We find nothing in the charter precluding taxation of the capital stock of the company.
It seems to be conceded by counsel for appellant that the legislative purpose is and has been to tax both the capital stock of the company and also its real and personal property, and his argument is addressed to the right of the state to
On the rule of construction to prevent double taxation, many decisions are collected in Cook on Stock and Stockholders, § 568, note 1. The subject of taxation of corporations, and the stockholders therein, is full of subtle distinctions, not necessary to be encountered in this case ; we shall therefore content ourselves with keeping near the subject of our inquiry.
Our laws do not now provide, and have never provided, any detailed.and elaborate scheme for taxation of corporate property, such as may be found in some of the other states, notably New York, Pennsylvania and New Jersey, doubtless because they are few in number in our state, aud of but small relative wealth. "With the exception of those provisions which relate to taxation of banks and railroads, and those which relate to privilege taxes, §§ 3750 and 3758, code 1892, comprise our whole law on the subject. It is somewhat difficult to perceive the precise purpose of the plan of taxation thereby provided; it is certain that its details are not expressed, but must be found from inferences drawn from general principles. The original of § 3750 is found in the act of February 20, 1840, and that of § 3758 in the act of March 5,1846. Hutchinson’s Code, pp. 177,’ 197.
In the codification of our laws in April, 1857, the requirement was that the statement should be of the capital stock paid in, instead of that paid in or subscribed, and the exception was of such stock “ as is held by the state, or otherwise not liable to be taxed.” Code 1857, p. 77, art. 24.
In the codification of 1871, the section was extended so as to include banks and “other joint stock companies.” Code 1871,§ 1683.
In the code of 1880, the exception of stock “ held by the state, or otherwise not liable to be taxed,” was changed so as to read, “ such as is not liable to be taxed,” and the market value of the stock, instead of its par value, was fixed as the basis of taxation. It thus appears that the exemption of the statute could be claimed only when the stock of the company was by law exempted to the company, or the shares of stock to the stockholders.
Under the law as it stood prior to the code of 1880, the stock of the company was the subject of taxation, and whether its value had increased or diminished, by investment or loss, the basis remained unchanged. This was taxation of the stock, purely and simply as stock. But by the code of 1880 a marked change was wrought, for while the word stock continued to be used, other considerations, by which its value was determined, were brought into view. The accrued surplus or profit, the franchise of the corporation, and whatever other things which gave value to the stock, were added as factors in determining the basis of taxation. So,
In Farrington v. Tennessee, 95 U. S., 679, illustrations are given of the different phases which taxation of corporations may assume. Thus, there may be taxation (1) of its franchise ; (2) of its accumulated earnings; (3) profits and dividends ; (4) real estate; (5) deposits in banks; (6) capital employed; (7) on circulation.
Though, as we have said, the details of the plan of taxing corporations are left somewhat uncertain by our laws, it is obvious that the purpose is to tax under the comprehensive designation of corporate stock, at its market value* all species of property owned by the corporation, whatever enters as a factor in determining its value. It is also evident that taxation of its real and personal property in specie is not taxation of all the various elements of value, for this would exclude in all cases the value of the franchise, and also its investments, in securities of a non-taxable nature. On the facts stated in the petition, the stock of the Mississippi Mills is property which has escaped taxation, within the meaning of our law, and it was the duty of the assessor, upon discovery of that fact, to assess it as such, and make proper return to the board of supervisors.
That we may not be misunderstood, we will note here that we speak with reference to a subject of taxation omitted by the assessor, and not considered by the board of supervisors. If the things taxed — the real and personal property of the company — comprised its capital stock, the mere change of nomenclature would not carry liability to an additional tax nor open the door to a reconsideration of the value of the property. Values, when fixed by the conjoint action of the citizen and the constituted authorities, cannot again be made the subject of controversy between the state and the citizen, but are definitely and conclusively fixed by the final action upon the assessment-rolls according to law.
It is proper and important to consider what rule should apply in the assessment of the stock for taxation.
1. It is to be noted that assessments of the character now under consideration are made nunc pro tune. The property and the burden are to be considered just as they would have been if the assessment had been made when it should have been. The valuation of the property should be according to its value at the time when it ought to have been assessed, and the tax imposed is that which then should have been collected.
2. The assessment heretofore made of the real and personal property of the company should be deducted from the value of the stock, for, as we have said, they constitute factors in determining its value; and, having been once assessed, taxation of it again, under the name of the stock, would be double taxation. For, though the legislature might have levied both an ad valorem tax and a privilege tax upon the company, that levied is an ad valorem tax, and it is not-to be presumed that the legislative purpose was to «tax the same property twice.
In many of the states where corporate stock is assessed, it is provided that there shall be subtracted from its real value the assessed value of its real estate. Under such statutes all danger of a double assessment is obviated. While our law contains no such provision, we can perceive no more satisfactory 'or certain process by which the legislative purpose can be carried into effect, nor is there any -reason why the assessor and supervisors may not resort to it in determining the taxable value of the stock.
. Another objection made by the appellee is that, under the acts of 1872 and 1873, above noted, all the property of the
Counsel for appellee finally contend that the Mississippi Mills is not a “bank or other joint-stock company,” and is therefore not within the terms of the law. This construction is too rigid, and would practically nullify the statute.
We observe that much we have said as to this proceeding is advisory merely, for by mandamus the judicial discretion of the officer cannot be controlled. He can only be compelled to act. 'If, in acting, mistakes of judgment occur, they must be corrected in another proceeding.
It remains only to be said that Oliver, in his life-time, and his estate now, are .not taxable with the value of his shares in the stock of the company. Stock in domestic corporations is taxable under the provisions of law we haye been considering, and it is not contemplated that the share-holder shall be again taxed with so much of it aá hé owns individually. There is no express declaration of law that he shall be, and the presumption is that, having been taxed once to-the company, it shall not be taxed also to the share-holder.
The judgment is reversed.-