84 Tenn. 111 | Tenn. | 1885
delivered the opinion of the court.
The original bill in this case was filed on October
On May 4, 1885, after all the proof had been taken in the cause, the defendant was permitted to file an amended answer, in which it conceded that under a recent decision of this court it would probably be held liable for the annual tax provided for in the charter, and asking in that event that it be allowed credit for payments made by it under the assessments of the act of 1869, and subsequent acts renewing its provisions.. The answer also insisted that by the terms of the defendant’s charter it is exempted from all other taxes-required to be paid by others who follow the same occupations.
At the time the defendant was permitted to file an amended answer, the complainant obtained leave to file an amended bill, which was filed accordingly. This amended bill made Max Sax and .Julius Sax co-defendants with the Nashville Savings Bank. After repeating the allegations of the original bill, it alleged that the new defendants had purchased the chartered rights]' and franchises of the Nashville Savings Bank
Julius and Max Sax filed an answer to the amended-bill, in which they say that they are and have been the president and cashier, respectively, of the Nashville Savings Bank, and as such have conducted a banking business under its charter, and that they never, as. individuals, engaged in the banking or brokerage business. No proof was taken or introduced after the filing of the amended bill.
The chancellor, upon final hearing, held the bank liable for the annual tax provided for in the charter,, subject to a deduction of the amounts paid to the State upon the assessments made under the act of 1869 and subsequent acts, and he ordered an account accordingly. He dismissed the amended bill with costs» The State alone has appealed.
The litigation is, therefore, confined to the -original bill. The defendant demurred to the bill upon the ground that the remedy of the State for the en
It is also assigned as a cause of demurrer that the statutes, under which many of the taxes claimed were levied, have been repealed, without any saving clause as to taxes accruing under them, and therefore cannot be enforced. This was the rule of the common law.
The bill cannot be sustained in so far as it seeks to charge the defendant with a privilege tax from carrying on the business of a broker. The proof shows that the bank, since the year 1881, inclusive, has bought and sold public stocks and bonds for others, but in all such cases selling stocks or bonds which it then owned, or bought itself for. the customer. In no instance is it shown to have acted as an agent or middle man, charging a commission for its services. The facts proven bring the case precisely within the case of State v. Duncan, 16 Lea, 75. The business is not that of a regular and general broker within the meaning of our revenue laws. The defendant’s charter, moreover, authorizes it to “ deal in public and private securities,” and we held at the last term at this place, that these words in a bank charter conferred upon the bank, as part of its banking privileges, the right to purchase public stocks and bonds and to sell them to third persons, as was done in the case before us, without subjecting the bank to a broker’s tax in addition: Life Deposit & Trust & Banking Company v. Eastman, manuscript opinion of Judge Freeman.
The liability of the defendant for taxes due the
Shortly after the passage of the act of 1869, the defendant, through its solicitor, brought the attention of the State authorities to its provisions, and it seems-to have been agreed that they did change the liability of the defendant for taxes, the defendant claiming the benefit of the fourteenth section of the -act as a savings bank. From that time forward; the defendant undertook to return to the assessors for taxation the gross sum of its surplus earned each year, which was-assessed accordingly, the defendant paying, and the-collecting, officers receiving the taxes thus ascertained' for the State, county and city. The defendant had-previously paid into the State treasury' the one-half of one per cent, on its capital stock, under the seventh section of its charter. By the revenue act of 1881,. the Legislature, for the first time, levied a privilege tax on banks and banking, which tax was continued by the act of 1883. The contention of the complainant is, that the defendant is liable for the annual tax of one-half of one per cent, on, its capital stock, as
At the last term of this court, the construction of the fourteenth section of the act of 1869 came before this court for the first time, and it was held that whether a bank was a “savings bank” within the meaning of that section must be determined, not by the name given to it in its charter, but by its organization, powers and mode of doing business, as provided in its act of incorporation: State v. Lincoln Savings Bank, 14 Lea, 42. It was this decision that led the defendant to apply for leave to amend its answer, and to file an amended answer in this case.. Eor the organization, powers and mode of doing business as provided in the defendant’s charter were those of a bank doing a general banking business. It had conducted its business accordingly, and was in no sense a savings bank within the meaning of the revenue laws, nor entitled to pay taxes, under the provision in question. And the defendant, as it virtually concedes by not appealing from the chancellor’s decree, is liable to pay to the State tfie one-half of one per cent, on its capital stock under its charter, from the-time it ceased to make such payments. But we concur with the chancellor in the opinion that the defendant is entitled to a deduction for the amounts paid by it to the State upon the assessments under-the act of. 1869 and subsequent acts, because the change-in the taxation was acquiesced in by the State author
The remaining question is as to the . liability of the defendant under the acts of 1881 and 1883, imposing a privilege tax on banks and banking. The defendant does not claim that the provisions of the seventh section of the charter, fixing a tax on the capital stock, amounts to an exemption from other taxation. This it could scarcely do after its own abandonment of that provision for so many years, and in view of the decision in Wilson v. Gaines, 9 Baxt., 546. The contention is,- that the requirement of the charter is a consideration to be paid for the privilege of exercising the franchise, and a rate of taxation prescribed. And so it undoubtedly is, and will continue, until the Legislature sees proper to change it, which it' may do by the power reserved in the tenth section of the charter, or by a general law disclosing a clear intention to that effect. Ordinarily, a subsequent law, which is general, does not operate as a repeal of a special law upon the same subject, without express words declaring an intention to repeal: Ottawa v. LaSalle, 12 Ill., 399. And therefore a general law will not repeal or affect the provisions- of a special charter unless plainly so intended: State v. Wilson, 12 Lea, 246, 251; Mayor v. Dearmon, 2 Sneed, 104, 120; State v. Branin, 23 N. J. Law, 484. Or, as it has been more emphatically expressed by the Supreme Court of New Jersey, “ the provisions of a charter shall not be altered or repealed except by express words ”: State
The decree of the chancellor will be affirmed, with •costs, and the cause remanded for further proceedings.