Opinion
(February Term, 1890.)
Constitution — Municipal Taxation — Solvent Credits.
1. Article 7, sec. 9, of the Constitution was not intended to apply the rules of uniformity and equality to the subjects alone selected by the Legislature for taxation in granting a municipal charter, but requires that all property in the municipality shall be taxed, and taxed uniformly and equally.
2. The word "property," as used in Article 7, sec. 9, of the Constitution, includes moneys, credits, investments and other choses in action.
3. Although the power of a municipal corporation to tax is not conferred by the Constitution, yet, where such power is exercised, the Constitution (Article 7, sec. 9), independent of the provisions of the charter, commands that all property in such municipality, real and personal, including moneys, credits and the like, shall be taxed according to its value and by a uniform rule.
4. The words "all real and personal property," in Article 5, sec. 3, of the Constitution, are to be taken in their most comprehensive legal import, and include every kind of real and personal property whatever, not excepting the several classes of personal expressly mentioned in the first clause of the section.
THIS was a controversy submitted without action under sections 567569 of The Code, tried before MacRae, J., at Spring Term, 1888, of the Superior Court of EDGECOMBE County.
(123) The following were the facts agreed:
1. That the plaintiff Claudia Redmond is a resident of the town of Tarboro, and has been for a number of years.
2. That in 1888, at the time required for listing property for taxation in said town, she refused to give in to the list-taker of said town $43,213 which she owned in solvent credits.
3. That, by an order of the board of commissioners of said town, the said solvent credits were ordered to be placed by the list-taker on the list, and were ascertained from the county list-taker's list, and were accordingly returned by the town list-taker on his list for taxation in said town, against the protest of the said Claudia, as was done in other like cases of solvent credits owned by persons resident in said town.
4. That of said solvent credits of plaintiff so placed upon the town list, $39,973.97 were owing by parties resident outside of the town, and such amount is secured on property not located within the limits of said town, and $3,328.03, or thereabout, were owing by parties residing within and citizens of said town, with the exception of a few dollars which she cannot accurately determine.
5. That the said board of commissioners, at their regular meeting in 1888, levied a tax of one-half of one percentum, or fifty cents on the one hundred dollars' worth of property, including solvent credits; in the words of the order, "that an assessment of fifty cents on the one hundred dollars valuation be levied on all property in the town of Tarboro not exempt from taxation, both real and personal included, all moneys, credits in bonds, stocks, joint stock companies or otherwise."
6. That the tax list for said year 1888-89 was put in the hands of John W. Cotton, tax collector for said town, who made demand upon plaintiff for the sum of $216.56, which said sum was for taxes on the solvent credits placed as aforesaid upon the list of taxables (124) against the protest of plaintiff, at the rate levied aforesaid, and the plaintiff, under protest, paid the said sum for said taxes on solvent credits, and holds therefor the receipt of the tax collector.
7. That said plaintiff has made demand in writing on the defendant board for the return of said taxes, and they refused to pay over to her the same.
The question presented to the court is whether the solvent credits so listed, or any part of them, are liable to the levy so made by the town of Tarboro.
The charter of the town of Tarboro, chapter 228, section 24, Laws 1876-77, provides "that, for the improvement of said town (Tarboro), and for the payment of the expenses thereof, the commissioners shall annually, before the first day of July, levy a tax on all the real and personal property not exempt under the State laws in said town," etc.
The court gave judgment as follows:
"It is considered and adjudged that the solvent credits listed by the plaintiff are liable to the levy as made by the town of Tarboro. It is further adjudged that the plaintiff pay the costs of this proceeding."
The plaintiff excepted, and appealed.
John L. Bridgers, H. L. Staton and James Norfleet (by brief) for plaintiff.
Donnell Gilliam (by brief) for defendants.
(MERRIMON, C. J., dissenting.)
The very important question presented by this appeal is whether the town of Tarboro has the power to levy a tax upon the solvent credits of its citizens.
It is necessary to an intelligent consideration of the question that we should review the several decisions of this Court in reference to municipal taxation, and extract from the conflict of authority and confusion in which the subject is involved the true principles governing (125) such taxation. Section 9, Art. VII of the Constitution, provides that "all taxes levied by any county, city, town or township shall be uniform and ad valorem upon all property in the same, except property exempted by this Constitution."
Does this provision simply apply the rule of uniformity and equality to the particular subjects which may be selected by the Legislature for taxation, or does it command that all property of whatsoever description shall be taxed, and taxed according to the said principles? If the latter be the correct view, and "moneys, credits, investments," etc., are embraced in the said section, it necessarily follows that all general laws and the special provisions of the charters of the various municipalities which conflict with the said provision of the Constitution are void, and that the refinements of construction which are sought to be applied to their particular phraseology become wholly impertinent to the present discussion.
1. We will first inquire, then, whether the said provision of the Constitution commands that all property shall be taxed?
"Taxes are defined to be burdens or charges imposed by the legislative power of a State upon persons or property, to raise money for public purposes" (Blackwell on Tax Titles), and the power to levy them is one of the essential attributes of sovereignty, and is inherent in, and necessary to, the existence of every government. Knowlton v. Supervisors of Rock Co., 9 Wis. 418; McCulloch v. Maryland, 4 Wheat., 316.
In the absence of constitutional limitations there is, it is said, no restraint whatever upon the Legislature, and it may discriminate in favor of or against a particular class of persons or property, and pass laws in violation of every principle of just government, by an unequal distribution of the public burdens. The check upon such an abuse of power is in the influence of the constituents over their representatives; and the weight of authority is that the courts have no right to (126) interfere with this exercise of the legislative will.
Thus it is seen that a wide field is open for a war between different classes of property, in that one class may be taxed to the exclusion or to the prejudice of another, and that under the forms of a free government, an excited partisan legislative majority may commit wrongs against the rights of property as flagrant and oppressive as those which have disgraced the reigns of the most despotic rulers.
But it is said that the General Assembly will be influenced by proper motives, and will levy taxes upon a just basis. Experience, in many of the states, has shown that the principles of taxation should not be left to the uncertainty or caprice of successive Legislatures, but that they should be fixed and immutable, and embodied in the fundamental law, under whose broad shield all property, of whatsoever species, may be equally protected.
This, we think, was the purpose of the framers of our Constitution in inserting therein the section referred to, as well as section 3, Art. V, relating to State taxation.
No one who reads these and other provisions of the Constitution, will fail to be impressed with the earnest effort there made to engraft upon our organic law the great principle of equality in taxation.
"The subjects of every state ought to contribute to the support of the government, as nearly as possible, in proportion to their respective abilities, that is, in proportion to the revenue which they respectively enjoy under the protection of the State. The expense of government to the individuals of a great nation is like the expense of management to the joint tenants of a great estate, who are all obliged to contribute in proportion to their respective interests in the estate. In the observation or neglect of this maxim consists what is called equality or inequality of taxation." Such are the words of the author of "The Wealth of Nations," quoted with approval by Judge Cooley, and we think that they well illustrate the true spirit and purpose (127) of our constitutional provisions upon the subject.
We are of opinion that section 9, Art. VII, was not intended to apply the rules of uniformity and equality to the subjects which the Legislature might alone select for taxation, but that it requires that all property shall be taxed, and taxed in accordance with the said rules.
A contrary view was taken by the Court, soon after the adoption of the Constitution, in the case of Pullen v. Commissioners of Raleigh, 68 N.C. 451. The charter enumerated eight subjects of taxation, "beginning with real estate situate in the city, and ending with encroachments on the streets by porches," etc.; but it did not include moneys, credits, etc. The Court affirmed the opinion of the Superior Court judge, that the Constitution was "intended to declare simply the manner in which municipal corporations should levy taxes, to wit, that they should be uniform and ad valorem, and not to declare the subjects to be taxed by them." The decisions in which this case has been cited (such as Winston v. Taylor, 99 N.C. 210; S. v. Bean, 91 N.C. 554; Latta v. Williams, 87 N.C. 126, and perhaps others) have reference only to the taxing of trades, professions and the like, and these, not being property, are correctly placed within the principle declared therein.
Under the construction of the Constitution, as declared in Pullen's case, it would be in the discretion of the Legislature to unequally distribute the burden necessarily incident to government, and the worst species of class legislation would be tolerated. "It would" (says Dixon, C. J., in Knowlton v. Supervisors, 9 Wis. 422) "make the Constitution operative only to the extent of prohibiting the Legislature from discriminating in favor of particular individuals, and would reduce the people, while considering so grave and important a proposition, to the ridiculous attitude of saying to the Legislature, 'You shall not discriminate between single individuals or corporations, but you (128) may divide the citizens up into different classes as . . . owners of different species or descriptions of property, and legislate for one class and against another as much as you please, provided you serve all of the favored or unfavored classes alike,' thus affording a direct and solemn constitutional sanction to a system of taxation so manifestly and grossly unjust that it will not find an apologist anywhere — at least outside of those who are the recipients of its favors."
Such a construction, in our opinion, not only offends the true spirit of the Constitution, but has been distinctly and solemnly repudiated by the uniform decisions of this Court in subsequent cases. These cases decide that when the taxing power is exercised for a public purpose, the Constitution, and not the Legislature, declares what property shall be taxed, and that it requires that all shall be taxed and by a uniform rule and ad valorem. This construction is conceded, as to State and county taxation, under section 3, Art. V, and we are unable to conceive why the same rule should not apply to section 9, Art. VII, as the language of the latter is even more imperative than that of the former.
In Cobb v. Elizabeth City, 75 N.C. 1, Rodman, J., after quoting section 9, Art. VII, says: "All taxes, therefore, must be levied as well on personal as on real property, notwithstanding any contrary provision in the charter."
In Kyle v. Commissioners of Fayetteville, 75 N.C. 445, it was decided "that shares of stock in a national bank are proper subjects of State, county and municipal taxation." The Court said ( Bynum, J., delivering the opinion) that, "in our view, it was unnecessary for the Revenue Act, or the charter of the town of Fayetteville to tax specifically the national bank shares of either residents or nonresidents . . . The Constitution seizes them and exacts from them their proportional share of the public burden. Neither the Legislature nor the (129) town corporation can exempt them from taxation without doing violence to the Constitution. . . . It is the provision and the purpose of the Constitution that thereafter there should be no discrimination in taxation in favor of any class, person or interest; but that everything possessing value as property, and the subject of ownership, shall be taxed equally and by a uniform rule. In this respect, the present Constitution shows no favors and allows no discretion. If, then, the town of Fayetteville has the power to tax, the Constitution steps forward and commands that all property shall be taxed and by a uniform rule." To the same effect are Young v. Henderson, 76 N.C. 420; London v. Wilmington, 78 N.C. 109; Puitt v. Commissioners, 94 N.C. 709.
The language of the Court in these decisions can admit of no question, and if anything further were needed to sustain the principles there laid down, we have the high authority of the late distinguished Chief Justice, in Vaughan v. Murfreesboro, 96 N.C. 317, who says that the Constitution (Art. VII, sec. 9) "commands that all taxes levied in any city, town or township, shall be uniform and ad valorem upon all property in the same, except property exempt by this Constitution; by force of which, notwithstanding the omission in the charter, personal, as well as real property, must be assessed and subjected to the same public burden." This overwhelming weight of authority, so consonant with the principles of equality in taxation everywhere pervading the fundamental law, conclusively establishes the proposition that wherever the taxing power is exercised for a public purpose, all property shall be taxed, notwithstanding any contrary provisions in the general law of the charter.
2. It only remains, therefore, for us to consider whether the word "property," in said section 9, Art. VII, includes moneys, credits, investments and other choses in action.
Considering the essential justice of the principles we have (130) mentioned, and which are so plainly recognized in the several provisions of our Constitution, the mind naturally rejects, in their interpretation, any narrow or strained rules of construction which may be relied upon to defeat their beneficent purpose. These provisions should be construed in the light of their general spirit and intention, and thus full effect be given to the will of the people, as expressed in their fundamental law. Clear and convincing indeed, then, must be the reasoning which gives a restricted meaning to the word "property," when used in reference to municipal taxation, while, as to all other taxation, it is to be taken in its natural and general sense. Upon what principle can it be contended that one who has no tangible property, but who owns a hundred thousand dollars in solvent credits, may enjoy all of the conveniences, safeguards and other benefits of town life, and contribute nothing whatever in the payment of the common expenses? Yet such will be the effect if the restricted interpretation contended for is to prevail. It is clear that all who enjoy these privileges should pay their part of the expenses. For instance, the evidences of these very solvent credits receive greater protection by the police of a town, and yet the police are to be paid only by those who own tangible property. No good reason can be assigned in support of such an unjust discrimination, while every principle of justice and common fairness sternly forbids it. In support of this restricted interpretation of the word "property," the plaintiff relies upon the case of Vaughan v. Murfreesboro, supra. The charter provided that the tax should be levied "upon all persons and property within the town subject to taxation for county purposes, under the general laws of the State." Under sections 3 and 6, Art. V, of the Constitution, there can be no question but that choses in action were taxable for county purposes, but it was held that under the charter they were not included. It is not easy to (131) understand how the language of the charter was material to the decision of the case, as the opinion, as we have seen, fully committed the Court to the principle that the Constitution, and not the charter determines what property shall be taxed.
While the opinion lays much stress upon the "localizing" words ("within the town") which are used in the charter, it seems to approve of the following dictum in Pullen v. Raleigh, supra: "In regard to that word (property), by the bye, we see that the Constitution does not make it include money, credits, investments in bonds," etc. These words are spoken of in Vaughan's case as an "adjudication," when, from an examination of the opinion, it will appear that the decision rested entirely on the ground that the objects to be taxed depended "upon the charter," and the charter having enumerated eight specific subjects, in none of which were embraced "debts and securities for money," the latter were excluded.
So far from adjudicating the meaning of the word, the learned Chief Justice is careful to say that "the word 'property' about which so much was said on the argument, is not embraced in that enumeration of the subjects of taxation." The dictum is founded solely upon the supposed distinction made in the use of the words "real and personal property" in section 3, Art. V, which words, it is said, are "used in a sense to exclude such credits and investments." The section is as follows:
"Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise; and also all real and personal property, according to its true value in money." The suggestion is (for, after all, it is but a suggestion), that by the verbal arrangement of this section, the words "real and personal property" are so restricted in their meaning as to exclude moneys, credits, etc., and that this limited sense is to be attached to the (132) word "property" as used in section 7, Art. IX.
It, therefore, becomes material that we should examine section 3, Art. V, and ascertain whether there is, in fact, such a distinction as is contended for. It is true that the meaning of the section is not very happily expressed, but it must be construed with reference to the context and spirit of all the constitutional provisions upon the subject, and their general intent and purpose cannot be defeated by the confused arrangement of words, or, as is suggested, by the presence of a semicolon between the two first clauses, since, even in the interpretation of an ordinary deed, punctuation must be disregarded, and words may be transposed to "bring them to the intent of the parties." Bunn v. Wells, 94 N.C. 67.
Let us now see whether such a distinction exists, or has ever been recognized and acted upon by this Court. If there be such a distinction, the argument founded upon it must be followed to its logical results, and it cannot be used in the construction of one section of the Constitution and abandoned as to others. Now, if the words "real and personal property" are used in the second clause in such a sense as to exclude "moneys, credits," etc., and the two clauses are divorced, as is argued, by a semicolon and the words "and also," and are therefore entirely independent of each other, upon what rule of construction has this Court so often applied the principle of ad valorem, mentioned in the second clause, to the "moneys, credits," etc., mentioned in the first clause? Clearly, this cannot be done but by holding that the words "real and personal property" include "moneys, credits," etc.
Again, if these clauses are independent of each other, how, we may ask, has this Court so frequently applied the rule of uniformity contained in the first clause to the real and personal property contained in the second clause?
These considerations alone ought to be sufficient to meet the supposed distinction upon which the dictum is founded. We are not without aid, however, in the construction of this provision of (133) the Constitution. It seems to have been taken from the Constitution of Ohio, as the language is precisely the same.
In that state, in the case of Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, an effort was made to draw the very distinction which we have been discussing, and the Court said: "But it is argued that the uniform rule in taxing, required by the Constitution, applies only to moneys, credits, investments in bonds, etc. Why should so important a rule as that of uniformity in taxation be established by the Constitution and then limited in its operations to a few specific classes of personal property? It is said that all other property is to be taxed 'according to its true value in money.' This requirement, however, only fixes the standard for ascertaining the taxable valuation, and does not necessarily imply equality and uniformity, either in the rate and mode of assessment or the different localities throughout the State. The taxable valuation may be fixed according to the true value in money, and yet discriminations may be made between different classes of property and different localities in the State imposing unequal and unjust burdens of taxation."
In speaking of the first clause, it is said that, "This provision, arising out of abundant caution, was not intended to give these enumerated things any new distinctive classification, nor does it, in fact, exclude them from the denomination of personal property, to which, by their nature and legal incidents, they belong. Mr. Broom, in his 'Selections of Legal Maxims' (page 415), says 'that the maxim, " Expressio unius est exclusio alterius," requires always great caution; thus, where several words are used in a written instrument, it is necessary, in the first instance, to determine whether those general words are intended to include other matters besides such as are specifically mentioned or to be referable exclusively to them, in which latter case only can the above (134) maxim be properly applied.' In the interpretation of legal instruments, words used out of abundant caution are often to be tolerated at the expense of tautology.
"The object of the language of the Constitution under consideration was comprehension, not exclusion. The words 'all real and personal property,' therefore, in the second clause of the section are to be taken in their most comprehensive legal import, including every kind of real and personal property whatsoever, not excepting the several classes of personal property expressly mentioned in the first clause of the section. If this interpretation be in any sense liable to the charge of tautology, it certainly is not to that of repugnancy. If this had not been the meaning intended by the framers of the Constitution, there would have been added to the words 'all real and personal property' these words, 'other than that above mentioned.' It is more in harmony with the settled rules of construction, to convict the lawmakers of some inelegancies in rhetoric and the use of unnecessary words, than to depart from the leading object and intent of the instrument. . . . Any other interpretation than this would lead to consequences at variance with the manifest spirit and true intention of the Constitution. If moneys, credits, investments in bonds, stocks, joint stock companies, etc., may be subjected to a different rate of taxation from that imposed on other kinds of property; or if moneys, credits, investments in bonds, stocks, etc., may be taxed at less than their true value in money, while all other property is required to be taxed at its true value, in either case, great and unfair inequalities may be created by legislative discretion. . . . There can exist no sound reason why a person, whose property consists of moneys, credits, stocks, etc., should bear a less burden of taxation than that which is imposed on lands and chattels of the agriculturist, the implements, machinery and materials of the manufacturer, (135) or the goods and wares of the merchant; and the Constitution, truly interpreted, recognizes no such distinction."
This case was decided in 1853, and has been cited with approval by this Court in Worth v. R. R., 89 N.C. 301, in which it is said that the provision under consideration "was copied from the Constitution of Ohio." The construction put upon it, therefore, by the Supreme Court of that State is entitled to great weight. "Where the terms of a statute which has received judicial construction are used in a later statute, whether passed by the Legislature of the same state or country, or by that of another, that construction is to be given to the latter statute." Comm. v. Hartwell, 3 Gray, 450; Ruchmaybe v. Mottichmed, 32 Eng. L. Eq., 84; Bogardus v. Trinity Church, 4 sand. Chan., 633; Riggs v. Wilton, 13 Ill. 15; Adams v. Field, 21 Vt. 256. "It is presumed that the Legislature which passed the latter statute knew the judicial construction which had been placed on the former one, and such construction becomes a part of the law." Potter's Dwarris Statutes, 274, note; Bridgers v. Taylor, 102 N.C. 89.
The foregoing rule, while not absolutely binding, is used as a valuable aid in the construction of laws.
This high authority determines, we think, that the words "real and personal property," as used in the said section, comprehend moneys, credits, investments, etc., and that there exists no such distinction as that relied upon to sustain the argument which seeks to place a restricted meaning upon the word "property" when used in other parts of the Constitution, and especially in section 9, Art. VII.
If the latter construction prevails, much obscurity, confusion and conflict will be introduced into the organic law which can easily be avoided by holding, as we do, that section 9, Art. VII, is but a concise form of expressing the principle contained in section 3, Art. V, the difference in the language employed being attributable to the probability that the two sections were framed by different (136) committees of the convention.
A contrary construction would lead to results which were little contemplated by the framers of the Constitution. For instance, if the word "property," in section 9, Art. VII, does not comprehend "moneys, credits," etc., they are without the pale of constitutional protection, and municipal corporations may tax them without regard to the rule of uniformity and equality.
Thus it will be in the power of the Legislature to put the entire or an unequal part of the burden of municipal government upon moneys, credits, investments in bonds, stock, etc., and, in this way, indirectly confiscate this species of property.
Such an abuse of the taxing power would, in the language of Miller, J. (delivering the opinion of the Supreme Court of the United States in the case of The Loan Association v. Topeka, 20 Wall., 655), be "none the less a robbery, because it is done under the forms of law, and is called taxation." And it is manifest that such an unlimited power of discrimination was not intended to be permitted by the Constitution.
It should, therefore, be a matter of serious consideration to the owners of this species of property, that in attempting to escape the payment of their part of the public municipal burdens, they are invoking a principle which excepts them from the protecting power of the limitations contained in the organic law. Another incongruity growing out of the construction contended for, is presented by section 6, Art. VI, which provides that county taxes "shall be levied in like manner with State taxes." State taxes, as we have seen, must be levied on moneys, credits, etc., by a uniform rule and ad valorem. The word "county" is, for some purpose, inserted in section 9, Art. VII, preceding the words "city, town or township." Now, if this section is to have any effect upon county taxation, and the word "property" is to (137) be taken in its restricted sense, we have a direct conflict with section 3, Art. V, both in respect to the subjects of taxation and the principles by which such taxation is governed.
Again, if such an interpretation is correct, it must be followed in section 1, Art. V, which provides that "the General Assembly shall levy a capitation tax on every male inhabitant of the State, . . . which shall be equal on each to the tax on property valued at three hundred dollars in cash. . . . And the State and county capitation tax combined shall never exceed two dollars on the head." As the word "property" alone is used, moneys, solvent credits, etc., constituting, it is estimated, one-eighth of the taxable values of the State, would be excluded from the benefit of the limitation in the above section, and would not enter into the calculation of the amount to be raised at any given per cent on the equation system for State or county purposes.
In passing, we will remark that the importance of imposing some restriction upon city and town authorities as to this species of property is enhanced by the fact that this Court has held that the constitutional limitation as to the per centum on the value of property does not apply to such municipal corporations. Young v. Henderson, supra; French v. Wilmington, 75 N.C. 482.
It does not follow, however, that because there is only a legislative limitation the principle of equation shall not be enforced, nor that the municipality may not collect from polls an amount equal on each to the tax imposed for municipal purposes on property worth three hundred dollars. In which case there would be no obligation to devote it to the support of schools and the poor, as section 2, Art. V, only directs the application of the capitation tax collected for State and county purposes.
These views are presented to illustrate how the whole system of taxation growing out of the construction we have given to the organic law could be made to operate harmoniously, as well as justly, whether imposed by the State or a municipal corporation under the (138) powers conferred upon it.
Just here we will notice an argument derived from language of the foregoing provisions of the Constitution. It is said that because property is there required to be valued at its true value in cash, it is a recognition of the distinction in section 3, Art. V. This is a petitio principii as the existence of such a distinction is the very point in question. We have shown, we think, both by reason and authority, that no such distinction exists, and that the said section means that all property, of whatsoever description, must be taxed at its true value, and by a uniform rule. Upon this we have also a legislative construction in chapter 218, Acts 1889, sec. 18, where solvent credits, investments, etc., are required to be taxed at their "true current or market value."
We will also add the remark of Rodman, J., in Wilson v. Comrs., supra, that such a construction of the word would place this class of property outside of the Bill of Rights, in respect to jury trial and other privileges guaranteed therein, as the word "property" only is there used. It must be apparent to every one that if such a finely drawn distinction is to be deduced from an involved sentence and made the basis of a limited definition of the word "property," we will meet with nothing but confusion and incongruities in many parts of the Constitution; whereas, if the general and legal meaning of the word is adopted, all of its provisions will be in perfect accord, working out together the benign principles of equality and uniformity in taxation.
For the foregoing reasons, we think that the dictum in Pullen's case was unfounded, and it is singular that it should still be quoted as authority. It was clearly not so regarded by its author, the distinguished Chief Justice, and we find the same Court over which he presided with such great ability, declaring, in Wilson v. Comrs. of Charlotte, supra, that "such an inference is hasty and cannot be fairly drawn," and unanimously deciding that the word "property," as used in (139) section 9, Art. VII, does include money, credits, etc. Again, in Wheeler v. Cobb, supra, the Court held that the word "property" includes bonds, stocks, solvent notes, etc.
In Kyle v. Comrs., supra, the Court said ( Bynum, J., delivering the opinion): "For wherever the power to tax is exercised, all taxes, whether State, county or town, by force of the Constitution, must be imposed upon all the real and personal property, moneys, credits, investments in bonds, stocks," etc.
In Pruitt v. Comrs., supra, the late learned Chief Justice in delivering the opinion of the Court, quoted the foregoing language with unqualified approval. These well considered cases, it seems to us, establish as well as judicial authority can establish anything, that the word "property" used in said section is not to be taken in the restricted sense as suggested, but that it includes "moneys, credits, investments, or any other chose in action."
But the opinion in Vaughan's case does not rest alone upon the "hasty" inference alluded to, but apparently seeks the aid of the common law definition of the word "property." The cases referred to are where it is used in residuary clauses of wills, in which a sale and division of the proceeds were directed. It was held, says Reade, J., in Hogan v. Hogan, 63 N.C. 223, "that money on hand and choses in action did not pass, the prominent reason being that they are not ordinarily the subject of sale, and in all the cases a sale was directed and a division of the proceeds."
Rodman, J., in Wilson v. Charlotte, after examining one of the cases and showing that the decision was controlled by the context of the will, remarks that "there can be no doubt, I suppose, that a bequest of 'all of my property' to A. would pass bonds belonging to the testator." It is hardly necessary, however, to pursue this phase of the discussion further, as the opinion in Vaughan's case admits that these (140) decisions are not in harmony, and are referred to as showing how the usual import of words may be restrained in their operation by the context."
While we do not for an instant concede that the manifest spirit and intent of the organic law of a State is to be controlled by the strict technical definitions of the common law as applied to wills and other dispositive instruments, we will insert some authorities which plainly show that at common law the word "property," when not limited by the context of the instrument in which it is found, includes choses in action.
It is a nomen generalissimum. "Standing alone, the term includes everything that is the subject of ownership." Anderson's Dict. of Law. "Property" includes not only ownership, estates and interests in corporeal things, but also rights, such as trade marks, copyrights, patents and rights in personam capable of transfer or transmission, such as debts. See Burchill v. Pugin, L. R., 10 C. P., 397; 2 Aust. Juris., 817 et seq. "Property," in a policy of insurance, has been held to include current bank bills owned by the assured. 5 Metchalf Rep., 1. The terms "goods and chattels" include choses in action. 12 Co., 1; Atk., 182. The word "property" includes choses in action as well as choses in possession. It includes money due as well as money possessed. Carlton v. Carlton, 72 Me. 116; Ide v. Harwood, 30 Minn. 195. "A credit," says Reade, J., in Lilly v. Comrs., 69 N.C. 307, "is property, and, as such, is liable to taxation as any other property." In Adams v. Jones, 6 Jones' Eq., 221, Manly, J., speaking for the Court, said that "the share of stock in the R. G. Railroad Company is property to be sold under the 11th clause of the will. The word is among the most comprehensive of those in use to signify things which are owned, and subject to be owned and enjoyed."
Speaking of constitutional provisions similar to ours, Cooley on Taxation, 134, says: "These provisions preclude discrimination in favor of or against any classes of property or persons whatsoever; they require the taxation of loans or any other credits, (141) these being property as much as lands or chattels in possession."
Moreover, we have a legislative interpretation of the word which is to be used "in the construction of all statutes," and which reflects much light upon its meaning when used in the Constitution. The Code, sec. 3765, provides that "the words 'personal property' shall include moneys, goods, chattels, choses in action and evidences of debts, including all things capable of ownership not descendible to the heirs at law. The word 'property' shall include all property, both real and personal." To the suggestion that this view of the subject will discourage the investment of capital in towns and cities, we answer that such a consideration should have no weight in a legal discussion, but that it is not true that such a result will follow, as the owner of solvent credits, etc., is only taxed, as to them, at the place of his domicile.
After this lengthy discussion, made necessary by the doubt and obscurity into which the subject has fallen, and sustained, as we are, by the general intention of the Constitution as interpreted by the repeated decisions of this Court and other weighty authorities, we conclude that, although the power of a municipal corporation to tax is not conferred by the Constitution, yet, when such a power is exercised, the Constitution "steps in," and, without regard to the provisions of its charter, commands that all property therein, real and personal, including moneys, credits, etc., shall be taxed, and that it shall be taxed according to "its true value in money," and by a uniform rule.
This, we feel sure, is in accord with the true spirit and meaning of the fundamental law, whose evident purpose is not to be defeated by a construction based upon a supposed distinction growing out of "inelegancies in rhetoric" and the improper punctuation of one of its provisions.
(142) For the reasons given, it is unnecessary that we should examine into the provisions of the charter. We are of opinion that his Honor properly held that the solvent credits of the plaintiff were liable to taxation by the defendant corporation.