When a contract is asserted and the Constitution of the United
States invoked to protect it, all of the elements which are claimed
to constitute it are open to examination and review by this Court,
and also all that which is claimed to have taken it away, and the
writ of error will not be dismissed.
The rule requiring a strict construction of statutes exempting
property from taxation should not be infringed, but, where
ambiguity exists, it is
Page 192 U. S. 74
the duty of the court to determine whether doubt exists and to
solve it and not to immediately surrender to it.
Where it is
res judicata that the original charter of a
bank by which its capital is exempt from any tax constituted a
contract within the impairment clause of the Constitution, and that
such exemption is not affected by subsequent charters and
constitutions, and there is no doubt that the state intended to
offer inducements to enlist capital in the early development of the
state, and no license tax was demanded for fifty-eight years
although that method of taxation was in force during the whole
period, the exemption from any tax may be construed as including a
license tax on occupation as well as taxes on property.
This suit was instituted in the civil District Court for the
Parish of Orleans for the recovery of the sum of $2,400, claimed to
be due from the bank for the year 1894 as a license tax for
carrying on a banking business. The license is claimed to have been
authorized by the following provision of act No. 150 of the General
Assembly of Louisiana of 1890:
"That for each business of carrying on a bank, banking company,
association, corporation, or agency, the license shall be based on
the declared or nominal capital and surplus, whether said capital
and surplus is owned, or in use, or on deposit in the state or
elsewhere, as follows, to-wit: . . . Ninth class. When the said
declared or nominal capital and surplus is four hundred thousand
dollars or more, and under six hundred thousand dollars, the
license shall be four hundred and fifty dollars ($450.)"
The bank pleaded the general issue, and that it was exempt from
paying such license by the provisions of its charter, granted in
1833, and by section 4 of the Act of January 30, 1836, amending the
charter, by which it was provided that
"the capital of said bank shall be exempt from any tax laid by
the state, or by any parish or body politic, under the authority of
the state, during the continuance of its charter."
It was alleged that the charter of 1833 and the amendment of
1836 were granted for a valuable consideration, and constituted a
contract between the state and the bank, and that the act imposing
the license impaired the obligation of the contract, and was
therefore violative of the Constitution of the United
Page 192 U. S. 75
states. Certain judgments were also pleaded as
res
judicata and introduced in evidence, one of which was the
decree of this Court in
New Orleans v. Citizens' Bank,
167 U. S. 371.
The trial court sustained the defense of the bank, based on its
claim under its charter, but did not pass on the plea of
res
judicata. The court observed:
"I pass only on the main issue raised, without reference to the
defendant's plea of
res judicata. Inasmuch as it does not
appear that the issue of exemption from a license tax has been
presented in any of the cases and judgments relied on to support
the plea."
Judgment was entered, dismissing the demand of the state. It was
reversed on appeal to the supreme court, the court, however,
dividing. 52 La.Ann. 1086. Elaborate opinions were delivered both
by the majority and minority of the court. All of the contentions
of the bank were held to be untenable, but the members of the
majority did not agree upon the grounds. Mr. Justice Monroe, with
whom concurred the Chief Justice, placed his decision on three
grounds: (1) the plea of
res judicata could not be
sustained, because the validity of a license tax was not involved
in the decrees or judgments pleaded; (2) license taxes were
distinguishable from taxes on property, and the bank was not exempt
from the former by its charter; (3) the act of 1874, extending the
charter from 1884 to 1911, was to take effect in 1884, from which
it was deduced:
"First, that the extension thus granted could add nothing not
authorized by the constitution of 1868, under the dominion of which
the act was passed, and which required the payment of a license;
second, that the grant, to take effect in 1884, became subject to
the constitution adopted in 1879, which also required, or
authorized the legislature to require, the payment of the
license;"
(4) even if this were not so, the acceptance by the bank of the
Act No. 79 of 1880
"specifically and in terms subjected it to the constitution of
1879, and thereby placed it out of the power of the legislature to
exempt it from the payment of the license imposed on other
institutions of the same class. "
Page 192 U. S. 76
Mr. Justice Watkins delivered a separate opinion, and placed his
concurrence on the distinction between a license tax and a property
tax, and said that "the conclusion is perfectly clear that a
property tax was only in contemplation of the legislature in
framing that exemption." And also said that the license law under
which the state proceeded "does not conflict with the contract
clause of the federal Constitution by impairing the contract rights
of the defendant bank under its charter." Concluding his opinion,
the learned justice observed:
"In my view, it is unnecessary for this court to go into any
discussion of the constitutional questions raised and adverted to
in the opinion of the majority for the reason that, on the face of
the charter exemption, which the bank pleads, its liability is
apparent."
"It is my view also that the better course of decision is, and
one more in harmony with the general jurisprudence of this Court,
to avoid discussion of federal questions which only arise
incidentally, and are unnecessary to the decision of the principal
question at issue."
"Entertaining this view, I think it is preferable to pass the
constitutional question under consideration, and reverse the
judgment of the district court and sustain the license on the face
of the charter and the law."
Mr. Justice Breaux and Mr. Justice Blanchard dissented, each
filing an opinion.
MR. JUSTICE McKENNA, after stating the case, delivered the
opinion of the Court.
1. A motion is made to dismiss. The ground of it is that,
even
Page 192 U. S. 77
if the charter of 1833 and the amendment of 1836 exempted the
bank from license taxes, the bank, by accepting the act of 1880,
which enabled the bank to make compromises with its mortgage
creditors, became subject to the constitution of 1879, which, it is
contended, authorized or required the legislature to impose a
license tax. And, besides, the act of 1874, extending the charter,
was subject to the constitution of 1868, and that required the
payment of a license. Upon those grounds Mr. Justice Monroe based
his opinion, and they, it is urged, involved state questions
sufficient to sustain the judgment. But those grounds only had the
concurrence of the Chief Justice. Mr. Justice Watkins did not
assent to them, and Justices Breaux and Blanchard dissented from
them. The judgment of the court therefore does not rest upon them.
The judgment rests upon the construction of the original charter --
that is, upon the contract between the state and the bank -- but to
construe that is also our function.
But, assuming that the judgment rests upon the grounds stated,
we nevertheless have the power of review. The federal question
presented is did the bank, at the time of the imposition of the
license tax sued for, have a contract with the state exempting it
(the bank) from such tax? The elements of that question are the
original contract and all subsequent legislation relating to the
contract and which it is claimed modifies or changes it. The motion
to dismiss is therefore denied.
2. The question presented on the merits has been simplified by
the case of
New Orleans v. Citizens' Bank, 167 U.
S. 371. The origin and history of the bank are there
detailed, its charter and its exemptions are construed, its
litigations with the city are recited, and their effect declared.
We need only apply and extend the reasoning of that case to decide
this.
It came here from the circuit court of the United States. It was
brought in that court by a bill in equity to enjoin the taxing
officers of the state and of the City of New Orleans from taxing
the bank under certain provisions of a statute of the
Page 192 U. S. 78
state for the assessment of the capital of banks. Under the
statute, the capital stock of banks which were represented by
shares were not assessed by that name, but the shares were required
to be assessed to the stockholders at their actual valuation as
shown by the books of the bank, and the taxes assessed were
required to be paid by the bank, which was given the power to
collect the amount from the shareholders or their transferees. The
real estate owned by the bank was directed to be assessed directly
to it, and the tax "proportioned to each share of capital stock"
and deducted from the amount of taxes of that share under the
statute. The statute also contained provisions for its
administration, and required property which had been omitted from
the assessment rolls to be assessed for the current year and for
three years back. The court adjudged the bank to be exempt from the
taxation, and granted an injunction against the collection of the
taxes for the designated years by the State of Louisiana, and the
City of New Orleans, "upon the capital, property, or shares of
stock of the shareholders of said bank, whether assessed against
the bank or its shareholders."
The writ also enjoined the demanding or collecting from the bank
of any state or city license tax. Commenting on the decree, this
Court said:
"The exemptions to which the decree below held the bank to be
entitled related therefore to distinct objects of taxation, one not
necessarily connected with or dependent upon the other, and may be
summarized as follows: First. That the bank was not subject to
taxation on its capital shares of stock or real estate, and
furniture actually used for the carrying on of its banking
business, and that the bank could not be lawfully obliged to pay
the sum of any tax assessed on its shareholders. Second. That the
stockholders of the bank were not liable for assessment on their
shares of stock. Third. That the bank was also not subject to
taxation on any real estate held by it which had been mortgaged to
secure stock subscriptions and had become the property of the bank
under foreclosure proceedings,
Page 192 U. S. 79
because property so acquired became, by virtue of the purchase,
a part of its capital stock. Fourth. That the nonliability of the
bank to taxation embraced also immunity from the payment of a
license tax to either the State of Louisiana or the City of New
Orleans."
The decree was affirmed as to the objects of taxation embraced
in the first subdivision, and reversed as to those embraced in the
second third and fourth subdivisions. Of the objects in the fourth
subdivision, it was said:
"We are at a loss to understand by what process of reasoning the
decree was made to cover the question of the nonliability of the
bank for license. It was not presented by the pleadings, and was
entirely dehors the issue in the case."
In sustaining the decree of the circuit court as to the objects
in the first subdivision, necessarily there was involved the
decision that the charter of the bank, both as originally granted
and as extended, exempted the capital of the bank from taxation,
and the exemption was not taken away by the constitutions of 1868
and 1879 by the acceptance of the act of 1874 by the bank, nor by
the act of 1880. Many considerations were referred to which might
have justified this as an independent conclusion, but the decision
was mainly rested upon the judgments of the courts of Louisiana
which had been pleaded as
res judicata, and which
judgments, it was decided, had concluded the controversies. There
was a clear adjudication, therefore, of the right of exemption of
the bank from a tax on its capital.
The ruling in
New Orleans v. Citizens' Bank has been
followed by the Supreme Court of Louisiana. In
Penrose v.
Chaffraix, 106 La. 250, 256, the same questions were raised on
the statutes of 1874 and 1880 and the constitutions of 1868 and
1879 as are raised in the case at bar. The court, replying to them,
said:
"Both these contentions were passed upon and negatived in
New Orleans v. Citizens' Bank, 167 U. S.
371, and the effect of that decision of the Supreme
Court of the United States is
Page 192 U. S. 80
to maintain and carry the exemption into the extended period of
the bank's charter."
It is true that, in a subsequent case,
State v. American
Sugar Refining Co., 108 La. 603,
New Orleans v. Citizens'
Bank is criticized, and its views are not concurred in as to
what constitutes the thing adjudged and an estoppel in tax cases.
But the thing claimed to have been adjudged was not a right claimed
under the Constitution of the United States, and there was no
intimation of disapproval of
Penrose v. Chaffraix.
But if it can be contended that there is conflict between the
state cases,
New Orleans v. Citizens' Bank is nevertheless
decisive of the questions adjudged by it.
Deposit Bank v.
Frankfort, 191 U. S. 499. And
all the questions in the case at bar were adjudged by it except the
question of the exemption of the bank from the payment of license
taxes. That question is now presented, and we think the exemption
exists. We deduce this not only from the words of the charter, but
from the purpose of its enactment and of its extension. The bank
was made an agency of the state. To have fostered it with aid and
to have burdened it with taxation of any kind would have been
inconsistent, considering the provisions of the act incorporating
it, and it was immaterial whether it was constituted a
quasi-public corporation or entirely a private one. It was
created to accomplish purposes in which the state took an interest,
and the expectations which were entertained of it may be regarded
in the interpretation of its charter. With the wisdom or folly of
the charter we have nothing to do. Our sole function is to
interpret it. It may seem, in 1903, to have been imprudent
legislation. But how did it appear in 1833 and 1836? We must
contemplate it as of that time. States act through men, and, of
course, cannot have a greater appreciation or prophecy of things
than men. Events may disappoint or baffle their purposes, but they
cannot, for that reason, be relieved from their obligations. Nor
can they necessarily be accused of folly. There are limits to the
power of government, and the wisest provisions may be frustrated or
turned to
Page 192 U. S. 81
detriment by causes which no prescience can foresee. It is
therefore to 1833 and 1836 we must turn, to the conditions and
purposes of then.
The chief industry of Louisiana was agriculture, and it seemed
to the state a wise policy to encourage and expand that industry,
and the means selected was a bank which could make loans to the
planters upon the security of their lands. Capital was necessary.
Private persons were to be induced to subscribe, and the state
aided by an issue and pledge of its bonds. It was careful to make
provision for control. No act of administration could be undertaken
without its consent. It was represented by six members on a board
of twelve directors. It, besides, contemplated the probability of
profits, and made provision to share them. The scheme was large and
hazardous. Private capital had to be tempted to it, and the state,
besides contributing its credit, offered the inducement of a relief
from burdens. There is no doubt of this, and the dispute is only as
to the degree, and, on an ambiguity which may be asserted upon a
distinction in the form of taxation, a limitation is attempted to
be put upon the comprehensive and expressive words of the bank's
charter. This seems to us not justified. The words of the charter
are "the capital of the bank shall be exempt from
any
tax." The word
any excludes selection or distinction. It
declares the exemption without limitation. And why should there
have been limitation? What purpose was there to serve by making a
distinction between the forms of taxation? The state did not intend
to so limit its aid. It did not mean to help the bank to do
business and then tax the business when done -- relieve it and
burden it at the same time. Retain the right to impose as an
occupation tax that which it gave up as a right to impose as a
property tax.
This view is sustained by contemporaneous construction of the
bank's charter. It was not only the immediate sense of the officers
of the state, but their continued sense through a number of years,
that the bank was exempt from all taxation,
Page 192 U. S. 82
and when the right of taxation was asserted, a license tax was
not included. And we have authority for saying that a license tax
was not demanded during a period of fifty-eight years,
notwithstanding the many changes in the administrative officers of
the state; that, during all that time,
"even from and inclusive of the very first revenue act (that of
1813), adopted after the admission of the state into the Union,
license taxation as a means of revenue was provided for and
enforced,"
and for a portion of the time (from 1869), license taxes were
imposed upon banks.
Stress is put in the argument at bar upon the distinction
between taxes on property and taxes on occupations. The distinction
exists, and counsel have cited Louisiana decisions in which that
distinction has been held to justify license taxes notwithstanding
clauses in charters exempting capital stock from taxation. a review
of those cases is not necessary. They were all rendered
subsequently to 1836, and they depended upon the application of the
constitution of 1868 or 1879, or special circumstances not
applicable to the charter of the Citizens' Bank. And those cases
did not embarrass the court in defining the scope of the charter of
the Citizens' Bank in the decisions presently to be considered.
That the distinction between property taxes and license taxes
was recognized in Louisiana in 1833 or 1836 is not very clear, but
subsequently the distinction was certainly not always considered as
justifying a power to impose license taxes. In
New Orleans v.
Southern Bank, 11 La.Ann. 41, the general law of the state,
approved April 30, 1853, called the Free Banking Law, was
considered. The law provided
"that bankers and banking companies, doing business under this
act, shall be taxed upon their
capital stock (italics
ours) at the same rate as other personal property under the laws of
the state."
It was held that the provision was a contract with the
individual corporations formed under the act, and a license tax
imposed by the common council of the city under an act passed in
1842, Session Acts of 1842, p. 17, which
Page 192 U. S. 83
empowered the city to levy a license tax on certain enumerated
occupations and "all other callings, professions, or business," was
illegal.
The same question was presented again in
State v. Southern
Bank, 23 La.Ann. 271, upon a license tax imposed by the
revenue laws of 1889. The court was urged to overrule
New
Orleans v. Southern Bank. The court refused to do so and
affirmed the doctrine of that case, and held the act "violative of
Section 10, Article I, of the Constitution of the United States."
The Supreme Court of Louisiana, therefore, as early as 1853,
construed a provision exempting the capital stock of a bank from
taxation except at a particular rate as exempting the bank from a
license tax. In other words, it was held that a license tax was
virtually a tax on the capital of the banks, and, we think, that
must be held of the tax in the case at bar. Whatever the tax may be
called,-one on property or one on occupations -- if its final
incidence is on the capital, it is comprehended in the exemption
contained in the charter. As we have already pointed out, the
language of the charter is universal, and it was said in
Citizens' Bank v. Bouny, 32 La.Ann. 239, "That language is
broad enough to cover everything which, during its existence,
should enter into and make part of the capital of said bank." If
the language is broad enough to preclude a tax upon that which may
become part of the capital of the bank, it is broad enough to
preclude a tax which may become a burden upon the capital. Whatever
diminishes the income of a bank diminishes its capital under the
provisions of the charter of 1833. It was said in the
Bouny case:
"By the twenty-ninth section of the original charter, 'all the
profits made by said corporation shall be added to and made a part
of its capital,' except a certain fraction of any excess of profits
over what was necessary to pay the bonds issued by the bank."
And the sum of $159,238.62 accumulated profits were held not to
be liable to taxation. And fully as significant was the exemption
declared of the sum of $636,450, assessed to the shareholders of
the bank as "value of capital
Page 192 U. S. 84
stock." It was said:
"Even if the shareholders be liable to taxation on their shares
(upon which we express no opinion), under the peculiar and
exceptionable nature of the charter of the Citizens' Bank, we think
it cannot be forced to pay the taxes assessed to its
shareholders."
In other words, the burden of tax could not be put upon the
bank, however it could be imposed upon the stockholders.
We may recur to
Penrose v. Chaffraix. It was a
proceeding to recover the payment of a tax for the year 1899,
imposed upon a certain number of shares of the capital stock of the
Citizens' Bank held by Chaffraix. Exemption was asserted under the
clause of the bank's charter which we have quoted. This was one of
the questions left open by this Court in
New Orleans v.
Citizens Bank, and left open in the
Bouny case. The
exemption nevertheless was sustained. It was recognized that, in
some jurisdictions, "including the Supreme Court of the United
States," it was held that the exemption of the capital of a
corporation from taxation does not of necessity include the
exemption of the shareholders on their shares of stock. But the
court considered that it was not necessary to approve or disapprove
the doctrine, and rejected it as inapplicable to shares in the
Citizens' Bank, because the intent of the legislature was
otherwise. And that intent was deduced "not only from the words of
the charter," but from the purposes for which the bank was
instituted, and they were vividly described. Because of them, it
was in effect said, and of the bank's relation to them and the
state's relation to the bank, the state "granted the clause quoted
above, exempting from taxation." And it was observed, "at that
time, the refined distinction between the capital and the capital
stock of a corporation had not been made by the courts, or was at
least unrecognized as yet in Louisiana." We see, therefore, that in
the
Bouny case it was held that a tax on that which might
become capital, or a tax which the bank would have to pay, is
illegal. In the
Chaffraix case, it is held that a tax
which falls on the stockholders of the bank is illegal. In other
words, the
Page 192 U. S. 85
effect of the two cases is that a tax which falls upon the
capital or is to be paid by the bank or its stockholders, is
prohibited. A license tax has surely some one of those effects.
It is urged, however, that neither the
Bouny case nor
the
Chaffraix case can be adduced as authoritative. The
argument is that a judgment in the case at bar has become the law
of the case, and that it cannot be affected by what was or has been
decided in some other case, and that the judgment in the case at
bar rested on nonfederal grounds which were sufficient to sustain
it, to-wit, the construction and application of the constitutions
and statutes of that state. The argument is the same as that
directed against our jurisdiction, and has been answered. When a
contract is asserted, and the Constitution of the United States
invoked to protect it, all of the elements which are claimed to
constitute it are open to our review, and also all of that which is
claimed to have taken it away. We are certainly not confined to the
decision under review. To hold that would surrender the power of
review. That decision, of course, claims our first and a most
thoughtful consideration, but in the right to challenge it is the
right to go outside of it, and certainly nothing can afford more
light or persuasion than the utterances of the same tribunal on
prior and subsequent occasions.
These propositions, then, are established: the exemption granted
to the bank in 1833 and 1836 was not taken away by the acts
extending its charter, and the application thereto of the
constitutions of 1868 and 1879. This was the thing adjudged in
New Orleans v. Citizens' Bank, supra.
The exemption of the charter includes a license tax. This, for
the reasons stated, must be regarded as part of the contract
between the state and the bank. And in reaching that conclusion,
the rule requiring a strict construction of statutes exempting
property from taxation has not been infringed. We recognize the
force and salutary character of the rule, but it must not be
misunderstood. It is not a substitute for all other rules. It does
not mean that, whenever a controversy is or can
Page 192 U. S. 86
be raised of the meaning of a statute, ambiguity occurs, which
immediately and inevitably determines the interpretation of the
statute. The decisive simplicity of such effect is very striking.
It conveniently removes all difficulties from judgment in many
cases of controverted construction of laws. But we cannot concede
such effect to the rule, nor is such effect necessary in order to
make the rule useful, and at times decisive. Its proper office is
to help to solve ambiguities, not to compel an immediate surrender
to them -- to be an element in decision, and effective, maybe, when
all other tests of meaning have been employed which experience has
afforded, and which it is the duty of courts to consider when
rights are claimed under a statute. Will courts ever be exempt, or
have they ever been exempt, from that duty? Has skill in the use of
language ever been so universal, or will it ever be so universal,
as to make indubitably clear the meaning of legislation? Has
forecast of events ever been so sure, or will it ever be so sure,
as to make inevitably certain all the objects contemplated by a
statute? We think not, and there never will be a time in which
judicial interpretation of laws will not be invoked, and it cannot
be omitted because a doubt may be asserted concerning the meaning
of the legislators. We repeat, it is the judicial duty to ascertain
if doubt exists.
The judgment is reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.
MR. JUSTICE BREWER, with whom THE CHIEF JUSTICE concurs,
dissenting:
I dissent from the opinion and judgment in this case, and will
state briefly my reasons therefor. Where it is contended that a
state, having once entered into a contract, has, by subsequent
legislation, impaired its obligations, this Court, while exercising
its independent judgment in respect to the terms of the contract
and the fact of impairment, will lean to the views announced by the
courts of that state. In
Wilson v. Standefer, 184 U.
S. 399,
184 U. S. 412,
we said:
Page 192 U. S. 87
"But, as the general rule is that the interpretation put on a
state constitution or laws by the Supreme Court of such state is
binding upon this Court, and as our right to review and revise
decisions of the state courts in cases where the question is of an
impairment by legislation of contract rights is an exception,
perhaps the sole exception, to the rule, it will be the duty of
this Court, even in such a case, to follow the decision of the
state court when the question is one of doubt and uncertainty.
Especial respect should be had to such decisions when the dispute
arises out of general laws of a state regulating its exercise of
the taxing power or relating to the state's disposition of its
public lands. In such cases, it is frequently necessary to recur to
the history and situation of the country in order to ascertain the
reason as well as the meaning of the laws, and knowledge of such
particulars will most likely be found in the tribunals whose
special function is to expound and interpret the state
enactments."
Where it is contended that exemption from taxation has been
granted by contract with the state, the exemption, if any be found
to exist, will not be extended by construction, but will be
confined to that which is clearly within the terms of the contract.
<|11 Pet. 420|>Charles River Bridge v. Warren
Bridge, 11 Pet. 420, <|11 Pet. 544|>544;
<|16 How.
416|> Ohio Insurance Co. v. Debolt, 16 How. 416, <|16
How. 435|>435, 1005;
<|23 How. 66|>Railroad Co. v.
Litchfield, 23 How. 66, <|23 How. 88|>88;
Railway
Co. v. Loftin, 98 U. S. 559,
<|98 U.S. 564|>564;
Railroad Co. v. Thomas,
132 U. S. 174,
<|132 U.S. 185|>185;
Railroad Co. v. Alsbrook,
146 U. S. 279,
<|146 U.S. 295|>295;
Railroad Co. v. Decatur,
147 U. S. 190;
Schurz v. Cook, 148 U. S. 397,
148 U. S. 409;
Bank of Commerce v. Tennessee, 161 U.
S. 134,
161 U. S. 146;
Insurance Co. v. Tennessee, 161 U.
S. 174, <|161 U.S. 177|>177.
In the last of these cases, on page
161 U. S. 177,
we said:
"It must always be borne in mind in construing language of this
nature that the claim for exemption must be made out wholly beyond
doubt, for, as stated by MR. JUSTICE HARLAN in
Chicago,
Burlington & Kansas City Railroad v. Guffey, 120 U. S.
569,
120 U. S. 575,"
"It is the settled doctrine of this Court that an immunity from
taxation by a state will not be recognized unless granted in terms
too plain to be mistaken. "
Page 192 U. S. 88
And in next to the last, on page
161 U. S. 146,
we also said:
"These cases show the principle upon which is founded the rule
that a claim for exemption from taxation must be clearly made out.
Taxes being the sole means by which sovereignties can maintain
their existence, any claim on the part of any one to be exempt from
the full payment of his share of taxes on any portion of his
property must, on that account, be clearly defined and founded upon
plain language. There must be no doubt or ambiguity in the language
used upon which the claim to the exemption is founded. It has been
said that a well founded doubt is fatal to the claim; no
implication will be indulged in for the purpose of construing the
language used as giving the claim for exemption, where such claim
is not founded upon the plain and clearly expressed intention of
the taxing power."
Only last term, the same doctrine was reaffirmed in
Chicago
Theological Seminary v. Illinois, 188 U.
S. 662,
188 U. S. 672,
in these words:
"The rule is that, in claims for exemption from taxation under
legislative authority, the exemption must be plainly and
unmistakably granted; it cannot exist by implication only; a doubt
is fatal to the claim."
I make these quotations, which are in harmony with the many
other decisions of this Court, for even the most casual examination
of them makes it apparent that the rule therein stated is plainly
ignored in this case, and that a term whose meaning is well
understood is stretched beyond its ordinary significance and to its
utmost limits in order to include the alleged exemption.
The Supreme Court of Louisiana in this case held that a license
tax was not within the exemption of the bank from any tax upon its
capital, the one being a charge for the privilege of carrying on
the business, and the other an exemption of a part of the property
of the bank from taxation. In the course of its opinion it said,
after referring to a prior case:
"There, the tax resisted, like those resisted in the cases
relied on, was at least a tax of the same character -- that is, a
tax
Page 192 U. S. 89
upon 'property' -- while the tax involved in this litigation is
one essentially different; it is a tax, it is true, but one upon
callings or occupations, and it is controlled and governed by rules
and principles entirely different from those which bear upon
property taxation.
New Orleans v. Louisiana Savings Bank,
31 La.Ann. 638;
Walters v. Duke, 31 La.Ann. 671;
Morehouse v. Brigham, 41 La.Ann. 667; Articles 203, 206,
207, and 209 of the constitution of 1879 also disclose this very
fully and clearly.
See New Orleans v. Ernst, 35 La.Ann.
746, and
State ex Rel. Ernst v. Assessors, 36 La.Ann.
347."
"
* * * *"
"The defendant urges that the license tax is substantially one
upon its capital. The views expressed by us above indicate our
opinion upon this point. The mere reference in the license acts to
the declared or nominal capital or surplus from business or banking
institutions is not a tax upon the capital or surplus itself of the
different banks, but a mere method of classifying the banks and
establishing a graduation of licenses, as required by article 206
of the constitution.
State v. Liverpool, London & Globe
Insurance Co., 40 La.Ann. 463;
Morehouse v. Brigham,
41 La.Ann. 666."
"This court, in
New Orleans v. State National Bank, 34
La.Ann. 892, said:"
"A provision in the charter of a corporation exempting its stock
and real estate from taxation does not cover an exemption
from
license taxation. The grant of a charter to a bank,
authorizing it to carry on a certain business during the term of
its charter, does not import permission to do so without
contributing to the support of the government in like manner with
natural persons pursuing the same business."
"
* * * *"
"The extent of the exemption granted originally from taxation
was from 'taxation upon its capital.' It could never have claimed
greater or other exemption than that. The law of
Page 192 U. S. 90
1890, the unconstitutionality of which is pleaded, does not
pretend to impose, nor does it impose, any tax upon the '
bank's
capital,' and therefore there could by no possibility be, nor
is there, any violation of any contract obligation through that
act, even should there really be any existing obligation at all
between the state and the defendant as to taxation."
That there is a clear distinction between a property tax on the
capital of a corporation and a license tax for the privilege of
carrying on the business of the corporation has been so often
decided by this and other courts, and is so clear, that it seems
almost a waste of words to refer to decisions. And yet it may be
well to refer to a few that it may be apparent how strongly,
emphatically, and for how long a time the distinction has been
affirmed. As a preliminary thereto, let it be borne in mind that
the franchise of a corporation is the privilege granted to it to do
the business named in its charter, and a license tax for the
privilege of doing business is simply a tax upon the franchise. In
Gordon v. Appeal Tax
Court, 3 How. 133,
44 U. S. 150,
decided in 1844, it was said:
"A franchise for banking is in every state of the union,
recognized as property. The banking capital attached to the
franchise is another property, owned in its parts by persons,
corporate or natural, for which they are liable to be taxed, as
they are for all other property, for the support of
government."
In
Hamilton Co. v.
Massachusetts, 6 Wall. 632,
73 U. S. 640:
"Property taxation and excise taxation, as authorized in the
constitution of the state, are perfectly distinct."
In
Farrington v. Tennessee, 95 U. S.
679, Mr. Justice Swayne, after referring to taxation of
bank capital and shares of stock, added (p.
95 U. S.
687):
"There are other objects in this connection liable to taxation.
It may be well to advert to some of them."
"1. The franchise to be a corporation and exercise its powers in
the prosecution of its business."
In
Tennessee v. Whitworth, 117 U.
S. 129,
117 U. S. 136,
Chief Justice Waite declared:
Page 192 U. S. 91
"In corporations four elements of taxable value are sometimes
found: 1, franchises; 2, capital stock in the hands of the
corporation; 3, corporate property; and, 4, shares of the capital
stock in the hands of the individual stockholders. Each of these
is, under some circumstances, an appropriate subject of taxation,
and it is no doubt within the power of a state, when not restrained
by constitutional limitations, to assess taxes upon them in a way
to subject the corporation or the stockholders to double
taxation."
Both of these last cases were cited with approval in
Bank of
Commerce v. Tennessee, 161 U. S. 134,
161 U. S. 146.
Many more cases might be cited to the same effect, but these will
serve as illustrations. It is conceded that this distinction was
recognized in Louisiana, though it is contended that it was not
always held sufficient to uphold, in the case of a contract
exemption of the capital, the retention of a power to impose
license taxes, and some early decisions of the supreme court of
that state are cited. But what does this argument amount to?
Because the distinction between the two taxes has not always been
recognized in Louisiana, it must now be repudiated. The legislature
must be held to have not recognized the distinction in this case,
because the courts have sometimes in other cases failed to
recognize it. It is not pretended that there has been a uniform
ruling on the part of the Supreme Court of Louisiana ignoring the
distinction. On the contrary, this very case (and this is only one
of several) recognizes it. It seems to me this is a plain
overturning of the hitherto settled rule of this Court that a doubt
is to be resolved in favor of a state, for the alleged doubt in
this particular case is resolved in favor of the corporation.
But upon what ground is it claimed that a doubt exists? Why
should not the legislature be credited with recognizing the
distinction recognized elsewhere through the country and sometimes
at least, if not always, in Louisiana? It is said that there is
something peculiar in the organization of this bank; that its
purpose was to aid the agricultural interests of the
Page 192 U. S. 92
state, and that the state assisted by a loan of its credit, and
retained partial control through directors appointed by it. But is
it not the rule that an exemption from taxation is not given as a
gratuity, but by reason of some supposed benefit to the state as a
whole or some particular interest therein? Does the fact that some
interest in the state is specially benefited change the rule as to
the construction of an exemption? It seems to me that that is a
doctrine as novel as it is dangerous. It is true that the state
loaned its credit, and retained a partial control through directors
appointed by it, but we have in the legislation of Congress and in
the decisions of this Court a very suggestive analogy. The Union
Pacific Railroad Company was a corporation chartered by Congress.
It was given a large amount of public lands, and the credit of the
United States was loaned to it to the extent of $16,000 and over a
mile. A partial control was retained through directors appointed by
the government. In these respects, it presents a close similarity
to the Citizens' Bank. It was held by this Court that, while the
franchise given by Congress to this and other transcontinental
railroads was exempt from state taxation, yet the property
belonging to those corporations was not.
California v. Pacific
Railroad Company, 127 U. S. 1;
Thomson v. Pacific
Railroad, 9 Wall. 579;
Railroad
Company v. Peniston, 18 Wall. 5. It was not doubted
that Congress could, in its discretion, have provided for such
exemption, but as it failed to prescribe it, the Court held that it
did not exist. If from the fact that the corporation was aided by
bonds of the United States, was engaged in doing the work of the
nation in interstate transportation, and a partial control retained
by Congress, that its property as well as its franchise was exempt
from state taxation, why should there be an inference from the fact
that Louisiana aided by its bonds this particular corporation and
retained a partial control thereof, that it intended to grant any
other exception than was expressly stated?
Again, it is contended that contemporaneous construction
determines that the exemption of the capital included the
Page 192 U. S. 93
exemption of the franchise. It seems to me a sufficient answer
is that, in 1853, the supreme court held that a provision exempting
the capital stock of a bank from taxation, except at a particular
rate, exempted the bank from a license tax.
New Orleans v.
Southern Bank, 11 La.Ann. 41. It is not strange that
thereafter there was no effort to impose a license tax on this bank
and that the administrative officers respected the opinion of the
supreme court, and did not until of late seek a reconsideration of
that ruling. It also appears that there was no specific statute
providing for a license tax upon banks until 1869, and that was
after the decision of the supreme court referred to.
It is also said that, if a license tax on the franchise is
enforced, it must be paid out of the capital, and so, in effect, be
a tax upon the capital. That argument would make in every case an
exemption of the capital a relief from all taxation, for every tax
must in the last analysis come out of the capital. But what, under
those circumstances, becomes of the doctrine of a strict
construction of a contract exemption of taxes?
Further, it must be remembered that objects and means of
taxation were not in the years past sought for with the same
avidity as at present. The demand for revenue was not so great, and
there was much inattention to the matter of securing objects and
devising modes of taxation. So the mere fact that a particular kind
of tax was not sought to be enforced upon any institution is not
conclusive of the fact that it was necessarily exempt therefrom. It
may simply mean that other objects seemed to the taxing authorities
more accessible and more conveniently reached for taxation. At any
rate, we are not justified in holding that the mere fact of an
omission to press such a taxation upon the bank establishes that
such a tax was included within the exemption in the face of a
ruling of the highest court of the state that it was not.
For these reasons, I am constrained to dissent from the opinion
of the Court.
MR. JUSTICE HARLAN also dissents.