State v. Mayhew

2 Gill 487

• Court: Court of Appeals of Maryland
• Decided: June 15, 1845
• Status: Published

Opinion

Dorsey, J.,

delivered the opinion of this court.

We deem it unnecessary to decide a number of questions, argued with great ability, by the counsel of both parties; because, from the view we have taken of the record before us, they do not arise in this case.

According to our interpretation of the act of Assembly in question, the legislature have not attempted to exercise some of the powers so vehemently complained of, on the part of the defendant.

The act of March session 1841, c. 23, having provided for a general assessment of all the real and personal property.within the State, directed, that the capital stock of the several banks, and other incorporated institutions of this State, should be assessed at its cash value. And all the property of such banks, and incorporated institutions, the stock of which was thus assessed and taxed, being exempted from taxation, as far as concerns the present controversy, the taxation of such stock, was decided to be a constitutional tax, both by the Supreme Court of this State, and of the United States. Difficulties having arisen from the mode provided, for the collection of the tax on said stock; and the peculiarly fluctuating ownership of such property, frequently rendering it a matter of controversy, by whom the tax ought to be paid, to remedy such evil; and to relieve the owners of stock, who might sell the same, from the inconvenient necessity of going to the county town, to attend a meeting of the justices of the levy courts, commissioners of the tax, or county commissioners, (as the case may be,) and furnishing proof of the sale and transfer of the stock, that it might be deducted from the amount, standing against them on the books of assessment; and to relieve the stockholders, as well as the other tax payers of the counties, city and district, from the payment of a levy of from three to ten per cent., on the amount of tax levied on such stock; and with a view, to provide a far more just, convenient and safe mode of collecting the public revenue, arising from the capital stock of banks, and other incorporated institutions in the State, the legislature, by the first section of the act of 1843, chap. 289, enacted, “that it shall be the duty of the president, or other proper officer of the banks, and of all other incorporated institutions of this State, semi-annually, after the passage of this act, to set apart and withhold out of the dividends, or profits, when dividends are not declared, on the stock of said banks and other incorporated institutions, the amount of the tax levied on the stocks of said banks; or other incorporated institutions, under the act of March session 1841, chapter 23, and its supplements, without reference to the place of residence of the stockholders therein, and to pay the said tax to the treasurer of this State, w7ho shall give proper receipts therefor.” And by the third section of the said act, it is enacted, “that on the first day of June next, the several levy courts, commissioners of the tax, and the appeal tax court of Baltimore, shall deduct from the amount of the assessment of property, in the several counties, Howard District, and the city of Baltimore, so far as relates to the taxes imposed, for the use of this State, the assessed value of the aforesaid stocks, and that thereafter, the accounts for taxes due this State, shall not include the tax upon the aforesaid stocks.”

To the provisions of the first section of the said act of Assembly, a great variety of objections have been taken, and elaborately and ingeniously pressed upon the court.

First it is insisted, that the defendant, from the nature of the duty imposed on him, is created a slate officer, a collector of the taxes, due by the stockholders of the bank. To this proposition, we cannot yield our assent. Neither the design, nor operation of the law, will warrant such an interpretation of it. Its object was, not to require the officer of the bank, to collect taxes due to the State; but to command him, he being already in possession thereof, to pay to the treasurer, the amount of state taxes in his hands; which, under the act of 1843, he had no authority to pay to any other person. By the act of March 1841, c. 23, the stock of the banks, owned by residents of the State, was assessed to the individual stockholders; and the tax thereon, was to be collected from them, in the counties, city or district in which they respectively resided. But, under the act of 1843, the place and mode of levying and collecting this tax, are entirely changed. It was no longer collectable where the stockholders resided: it ceased to be a debt, or duty chargeable upon them: they were exonerated from all personal liability, for'the payment thereof. Even the stock itself, stood exempt from the payment of the tax. The only security which the State had for its payment, was contingent; it depended entirely upon the contingency of the banks declaring dividends, or making profits, without declaring dividends. And out of those dividends or profits, by terms of the most explicit enactment, the tax on the stock, was directed to be paid to the treasurer of the State, by the proper officer of the bank; that is, by him, in whose hands the dividends and profits of the bank, are placed for safe keeping, and payment over to the persons entitled to receive the same. And if the objections, taken to the constitutionality of. this act of Assembly, be not sustainable, he was as imperatively bound to pay the tax in question, in the manner directed, as he would have been, had the board of directors enjoined him to do so.

The next objection taken to this act of Assembly is, that it is in violation of the sixth article of the Bill of Rights, which declares, “that the legislative, executive, and judicial powers of the government, ought to be forever separate and distinct from each other:” and of the twenty-first article of the same instrument, which provides, “that no free man ought to be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land.”

According to the argument in behalf of the defendant, if carried out to its legitimate extent, the legislature may cause an assessment to be made, and prescribe the rate of taxation, but there its powers upon the subject cease. It must be left to some judicial tribunal of the State, to ascertain the amount of indebtedness of the individual tax payers; and when thus ascertained, the payment of taxes, can only be enforced by a resort to the judicial tribunals of the State, in the same manner that debts are recovered by one citizen from another. If such be the constitutional restrictions imposed on the powers of taxation, the sovereign authority of the State is virtually disrobed of its most'important and invaluable rights, of the very essence of sovereignty. The delays and expenses, incident to such a system of collecting the public taxes, would effectually paralyze the right arm of government, and render it wholly incompetent, to the accomplishment of the all important objects for which it was constituted. That the General Assembly of Maryland has the right, by legislation, to impose upon all property within the State, a just, and proportionately equal public tax; and, in like manner, provide all the means, details, necessary for its speedy collection, by summary process of execution, or other reasonable or available mode is, we believe now, for the first time, made the subject of a doubt. That such powers should have been exercised, without being questioned, from the time of the adoption of our Constitution, till the present time, a period of nearly seventy years, ought to be deemed almost conclusive evidence of their being possessed by the legislature. A cotemporaneous construction of the Constitution of such duration, continually practised under, and through which, innumerable rights of properly have been acquired, ought not to be shaken, but upon the ground of manifest error and cogent necessity. If imperious necessity be appealed to, in relation to the existence of such a power, it sustains it with resistless force. And if a case can be conceived, in which, both as to time and circumstances, this court would shrink, with repugnance, from the innovation now urged upon it, this is that occasion.

It has been contended, that the tax, for the recovery of which the present proceedings were instituted, has never been levied ; and, therefore, the officer of the bank is neither authorised nor bound to pay it to the treasurer. The answer to this suggestion is, that the acts of Assembly have made the levy. The assessment of the stock having been made, and the rate of taxation prescribed, and the obligation for its payment being imposed on the bank officer; every thing has been done by the legislature, which is requisite for it to do, to render the tax available to the State. The tax, by the act of Assembly, is directed to be paid out of the dividends or profits of the stock, not by the owners thereof. It is a legislative levy, wholly irrespective of the ownership of the assessable stock. When the General Assembly confide to the levy courts, or county commissioners, the power and duty of making what is called “the levy of the taxes;” that is, of making out the “tax list,” and delivering a copy thereof to the collectors; it is done, not because the legislature do not possess the power of discharging the same duty itself, by express legislative enactment, but because the power can be more conveniently and advisedly exercised by the justices of the levy courts and county commissioners, to whose custody are confided the books of assessment containing all transfers of assessable property; without which transfer books, no “levy list,” or “tax list,” (as it is indiscriminately called,) can be correctly made out.

It is also contended, that a Mandamus ought not to issue in this case, because the officer of the bank, to whom it will be directed, is ignorant of, and has no means of ascertaining the amount of the tax to which the State is entitled; the stock of the bank being assessed at different values, in the different portions of the State, where the stockholders reside. If this could, in any case, (considering the facility with which the requisite information could be obtained,) furnish a ground for refusing to comply with the requisitions of the act of 1843; it certainly has no application to the case now before us. Here all the facts stated in the petition are admitted to be true; and the petition expressly states, that all the stock of the bank was duly valued, by the proper assessors, at $ 19.50 per share, so that the same rate of tax is chargeable in respect to each and every share of the stock of the bank. There is, therefore, in this case, no pretence for the alleged inability of the officer of the bank, to comply with the requirement of the act of Assembly, by reason of any diversity in the assessed value of the shares of bank stock. And there is still less reason, in the refusal of the proper bank officer to pay the State tax, on the ground of the injustice done to the stockholders of this bank, by the tax laws of the State. By taxing the stock of the bank, instead of its bills, bonds, notes, judgments, mortgages, and all its other property, real and personal; the bank does not pay, perhaps, one half of the tax it would pay, if its property were assessed and taxed in the same manner that similar property of all citizens of the State is now assessed and taxed.

It is further said, that the act of 1843, if complied with, would render taxation unequal, by compelling the tax of the stockholders to be paid in cash, whilst other tax payers possess the power of paying in coupons. Such was not the design, nor is it the practical operation of that act of Assembly. The legislature, by it, neither intended to increase nor diminish the amount of the tax levied upon bank stock. And the treasurer of the State receives, from the officers of the banks, coupons in payment of such taxes, in the same manner that they are received in payment of taxes due by the citizens of the State.

Neither is the objection to the act of 1843 well founded, that it compels the officer of the bank to pay the tax upon the whole capital stock of the bank, although portions of it might be exempt from taxation, as being owned by other banks or incorporated institutions, (the stock of which was taxed,) or as being owned in such manner, as to be exempt from taxation under the first section of the act of March 1841, chapter 23. All transfers of bank stock, and the names of its owners, appear upon the books of the bank, and should any of its stock be exempt from taxation, as above mentioned, the officer of the bank is not bound to pay the tax upon it, nor would the treasurer of the State insist upon its payment. But the conclusive answer to such an objection, in this case, is this, that the petition states, and its statements are admitted to be true, the assessment and tax of the stock in 1843, and its then and continued liability to such assessment, up to the time of the filing of the petition now before the court.

Another of the reasons, assigned for the non-payment of the tax to the treasurer, is, that the bank may have a lien upon the dividends for a balance due to it by the owner of the stock. The obvious answer to this is, that as soon as a dividend is declared, the right of the State to so much of it as is required to be paid on account of the tax, is fixed and indefeasible, and over-rides all other liens, claims, or rights by whomsoever asserted, unless, perhaps, it were in conflict with a preferred claim of the United States.

It has been urged, too, as an obstacle to the issuing of a Mandamus in this case, that the board of directors may have forbidden the payment of the tax by the officer of the bank. The record presents no such fact to the court, and we would very reluctantly credit its existence. Had such a prohibition been made apparent to the court, we feel assured it would have lent a willing ear to an application of the attorney general, for the interposition of the court in removing the difficulty.

The only remaining ground on which the officer of the bank places his refusal to comply with the mandates of the law, is that a compliance would subject him to “additional labor, trouble and expense.” To what extent, or in what way such “additional labor, trouble and expense” would be incurred, is left wholly unexplained. A citizen is not necessarily discharged from the obligation to perform a duty, enjoined by law, for the public good, because it imposes on him some additional labor, trouble and expense. The law requires a certain portion of its citizens to perform militia duty, by attending public musters on certain days in the year, which subjects them to much more labor, trouble and expense, than that imposed upon the officer of the bank in the discharge of the duty, now the subject of our consideration. The law requires every voter to go to the polls and vote at the election of public officers. It also enjoins upon every taxable inhabitant of the State, the duty of furnishing to assessors, a true and detailed statement of all his property liable to taxation, and of all such property in his possession, though belonging to other persons. A duty, in many instances, attended with far more labor, trouble, and expense, than is required of the bank officers, (under the act of 1843,) in consequence of the particular situation they occupy, in regard to important rights and interests of the State. Every citizen summoned by an executive officer to aid him in the preservation of the public peace, or in the service of civil or criminal process, or in the arrest of a felon, is bound to perform the service required, although it may subject him to danger, as well as “additional labor, trouble and expense.” Yet in all these, and numerous other instances of the kind, which might be enumerated, nobody ever doubted the obligation of the citizen to obey the mandates of the law. Suppose, instead of providing for the collection of taxes, through the instrumentality of collectors, the legislature had dispensed with collectors, and required all those bound for the payment of taxes to pay them to the treasurer, at the treasury of the State. Could the constitutionality of such legislation be, for a moment, the subject of a doubt? We think not. For the time, manner of payment, and collection of the public taxes, it is the peculiar province of the legislature to provide. It may, in its discretion, make the tax levied, a charge or lien on the property assessed, or its profits, or a personal charge or debt to the owner thereof. In the case of bank stock, the tax upon it is made, as it were a lien upon its dividends or profits, and to be paid thereout; and such dividends, or profits, being in the hands of the proper officer of the bank, he is required, by the act of 1843, to pay the portion thereof, to which the State is entitled for taxes, to the treasurer of the State. In this enactment, we can discover nothing unjust or oppressive, or in anywise conflicting with any thing to be found in the Bill of Rights, but we regard it as the legitimate exercise of a power incident to the sovereign right of levying taxes for the support of government.

The defendant having failed to inform us how, or to what extent, the duty imposed on him by the act of 1843, has subjected him to “additional labor, trouble and expense,” let us inquire whether this “additional labor, trouble and expense” be so unreasonable, unjust and onerous, that this court, in the exercise of a sound, judicial discretion, ought to deny to the State, the process that has been applied for, in its behalf. To do this, we must ascertain what are the acts to be done by the bank officer, in discharge of the duty assigned him by the act of Assembly? He must multiply the number of shares, to wit: 23,425 by $19.50, the assessed value of each share ; and of the amount thus obtained, ascertain what is the one-fourth of one per cent. Having thus discovered the amount of the State tax if paid in money, with the prices current before him, which in a newpaper or otherwise, is to be found in every banking institution, he sees the price of coupons, and calls on a broker, or drops a line to a broker to call on him, purchases a coupon for the amount of the State tax, encloses it in a letter to the treasurer, and the next day, or the day after, receives a letter from the treasurer, containing the appropriate receipt. The postage on this letter being five cents, is, as it ought to be, paid by the bank : so that in truth, not a farthing of expense is incurred by the officer of the bank, in the discharge of this, his-most onerous duty. He then divides the sum paid for the coupon, by the aforementioned number of shares, and the quotient is the amount of the tax attributable to each share of stock. He then directs the clerk of the bank, by whom lhe statement is made out for the payment of the dividend, to deduct from the dividend of each stockholder the amount, arrived at by multiplying his number of shares by the sum payable as the tax on each share, and there ends all the “additional labor, trouble and expense,” of which the bank officer complains. If the entire labor and trouble thrown, in this case, upon the officer of the bank, were to be wholly performed by a single competent clerk, he would not be thus occupied for the half of a day. And if the directors of the bank would, as they ought to do, cause the coupon, for the payment of the tax on its stock, to be purchased before declaring the dividend, the officer of the bank, would be saved more than half the labor and trouble cast upon him by the act of 1843. This is a computation of the duties of the bank officer as to the first dividend, which, in a great degree, supercedes the necessity of similar calculations at subsequent dividends. The services thus rendered by the bank officer, though nominally for the Slate, are in truth performed in the way of his vocation, for the benefit and as the agent and representative of his employers, of whom the State might lawfully have exacted, the services thus performed by him. Under such circumstances, can this court do otherwise, than regard this alleged “additional labor, trouble and expense,” to the officer of the bank, as a ground wholly insufficient, to avoid the payment of taxes most justly due to the State.

The agreement of the counsel filed, in this cause, renders it unnecessary for us to say any thing, as to the propriety of applying for a Mandamus against the president, instead of some other officer of the bank.

The only remaining question to be considered, (if indeed a question it can be called,) is whether, in the case before us, a Mandamus is the appropriate remedy, to restore the State to those rights, which are illegally and unjustly withheld from it. For the recovery of the tax on the stock of the bank, the Slate has no lien on the stock; it can maintain no action at law against the stockholder; nor against the bank; nor against any officer of the bank in his official character. Nor can it maintain an action for money had and received, against any officer of the bank, in his individual character. Yet, under the act of 1843, we are of opinion, that it has a clear and unquestionable right, a legal right, to be paid out of the dividends declared, the amount of the tax imposed on the assessed value of the slock of the bank. And for the assertion of this right, it has no appropriate legal remedy. According then to all the authorities, a Mandamus is the proper remedy; and it would be a reproach to our system of jurisprudence, if it were denied to the State on the present occasion.

The proforma judgment of the county court is reversed, with costs, and a procedendo awarded.

JUDGMENT REVERSED AND HROCEDENDO AWARDED.