The Peoplev.Commissioners of Taxes and Assessments

Court of Appeals of the State of New YorkJun 1, 1861
23 N.Y. 192 (N.Y. 1861)

June Term, 1861

Alexander W. Bradford, for the appellants.

Greene C. Bronson, for the respondents.

This case has been argued upon the assumption that the funded debt of the United States in the form of stock, is, by the Constitution, absolutely exempt from taxation by the state governments. Hence, the position mainly argued by the counsel for the city of New York, was that the existing law for the assessment and taxation of corporations, of the class to which the appellant belongs, looks to the capital stock of the corporations paid in, or secured to be paid in, as the subject of taxation, irrespective of the manner in which it has been invested. Consistently with this position it is argued that it is not a circumstance of any importance, that a portion of the moneys contributed by the subscribers has been invested in property not in itself subject to taxation; that it is the same thing in effect as though so much money had been lost; and if such had been the case, it is further insisted that the corporation would, notwithstanding, be liable to taxation in the whole amount of capital originally paid in, or secured to be paid in, except such portion thereof as had been paid out for the purchase of real estate. If the provisions of the Revised Statutes respecting the taxation of moneyed corporations had remained unchanged, the argument would have had much weight; for the principle of taxation which these enactments established, was that the amount of the capital, with the exception before mentioned, was to be taken as the amount of the personal estate of the corporation for which it was to be taxed, whether it had been impaired by losses or increased by accumulated profits. (1 R.S., 414, §§ 1 to 6; Bank of Utica v. City of Utica, 4 Paige, 399; The People v. Board of Supervisors of the county of Niagara, 4 Hill, 20.) In substance, it was the institutions which were taxed under these provisions, and not the property possessed by them at the time the assessment was made. The measure of assessment was the nominal capital originally contributed, which was compared, in distributing the public burdens, with so much property actually possessed by natural persons who were taxpayers. Under such a system it might be fairly argued that it was unimportant in what manner the moneys had been invested, for the existing property was not an element which entered into the valuation; but it was the sum which the corporation had, when all the subscriptions had been paid in and before any investment had been made. The character of the investments would be immaterial. But this rule had been changed before the assessment under consideration was made. In the year 1853, the amount of surplus profits, or reserved funds, was directed to be added to the amount of the capital, and there was a provision for exemption in the case of corporations which had not been in the receipt of net income (ch. 654). It is not material to determine whether these provisions would have affected the question; for in 1857 an act was passed, which completely changed the system of assessment of these corporations. The material provision was as follows: "The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or shall have been exempted by law, together with its surplus profits, or reserved funds, exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county" (ch. 456, § 3). It is manifest that under this provision, the assessors could not any longer take the nominal capital as, under all circumstances, the amount of the assessment. If it were alleged that this did not represent its actual value, it would be their duty to look at its market price, and, if necessary, to ascertain the character and worth of the securities in which its funds had been invested. It would be equally their duty to inquire whether any of this property, into which the capital had been converted, was exempted by law from taxation. Prima facie it may be that the nominal amount of the capital would be considered its actual value; but where it should be shown that it had met with losses, or that its investments had otherwise depreciated, other means would have to be resorted to in order to ascertain the actual value of the assets in which its capital consisted. The market price of its shares would ordinarily furnish a practical test; but either the assessor or the taxpayer would have a right to examine and have an estimate made of the value of the securities. ( The Oswego Starch Factory v. Dolloway, 21 N.Y., 449.) The reference to exempt property in the section of the statute which I have transcribed, is in pari materia with the 4th section of the title of the Revised Statutes relating to property liable to taxation. That section declares that all property exempted from taxation by the Constitution of this State, or under the Constitution of the United States, shall not be liable to be assessed or taxed under these provisions. (1 R.S., 388.) It follows, therefore, from the very language of the statutes, that if the Bank of the Commonwealth has invested a part of its capital paid in, in a stock which is exempt from taxation under the Constitution of the United States, such portion is to be excepted from the assessment. The position of a bank in this respect is precisely the same as that of an individual taxpayer. It is, as a general rule, assessed and taxed for all its property of every kind; but there is an exception as to such part of it as the Constitution and laws of the Union and of the State have, upon special reasons of policy, declared shall be exempted. Whether such exempt property is found in the hands of an individual, or in the possession of a corporation taxed upon the actual value of its capital, the rule is the same: the exempt property is to be deducted from the aggregate valuation, and the tax is to be imposed upon the residue.

The question then arises, whether the public debt of the United States is exempt by the Federal Constitution from taxation under the general laws for the assessment and collection of taxes which are in force in this State. It is essential in the outset, to have a clear perception of the principles upon which taxes are imposed under our State laws. We do not select particular subjects of taxation and, upon motives of policy, burden these with the public contributions or a disproportionate part of them in exoneration of the other property of the citizen. The rule, on the contrary, is to tax every person for all the property he possesses. This doctrine is announced at the commencement of the chapter of the Revised Statutes, respecting taxation: "All lands and all personal estate within this State, whether owned by individuals or by corporations, shall be liable to taxation, subject to the exemptions hereinafter specified." (1 R.S., 387.) The exceptions are inconsiderable, and only tend to prove the universality of the principle. And there is no artificial rule of valuation, by means of which a discrimination can be made, in favor of or against any particular species of property. The real estate is to be assessed at its full and true value, and that at which the assessors would appraise it in payment of a just debt due from a solvent debtor; and the personal estate is to be set down at its full and true value, over and above the amount of debts due from the person assessed. (Laws of 1851, ch. 176, § 8.) If, therefore, the stock in question is assessable at all, it is to be included in the mass of the taxpayer's property, and is to be set down at what it is really worth, in the same manner as every other item of his taxable property. It is not taxable by name; and there is no discrimination in favor of or against it, but the bond or script which furnishes the evidence of the title is regarded like any other security for money.

Having premised thus much, the question recurs whether there is anything in the Constitution of the United States, which, by a fair interpretation, forbids the States under their tax laws from including in the aggregate valuation of the taxpayer's property, in respect to which he is to be taxed, money which he has lent to the Federal Government, for which he holds its evidence of indebtedness. It is the constitution alone which is to be looked to, for congress has never passed any statute on the subject. That body has from time to time authorized the executive department to borrow money, to fix the rate of interest to be paid, and to pledge the public credit for its payment; but it has not undertaken to restrain or limit the taxing powers of the State governments, in respect to the money lent or the script or securities to be issued upon such loans. It has said nothing on that subject. If there is any such restraint or limitation, it exists in the Constitution itself. Among the attributes conferred upon congress by that instrument is the power, "to borrow money on the credit of the United States." (Art. 1, § 8.) Then the Constitution declares that itself, and the laws made pursuant to it, and the public treaties, shall be the supreme law of the land, and paramount to the State Constitutions and laws. (Art. 6, ¶ 2.) It may be safely admitted that any act of a State Legislature forbidding, or placing any substantial obstacles in the way of negotiating, Federal loans from the citizens of such State, would conflict with the Constitution. As the constitutional power to borrow money does not declare that it shall be procured within the Union, or from citizens of the United States, there is, perhaps, no corresponding duty on their part to lend. Nor was it intended that any such duty should be imposed. No enabling power in respect to the lender was required. Nothing was necessary but that the political corporation, which it was proposed to establish, should be endowed with the faculty of borrowing on the public credit. As to the rest, the money markets of the world were looked to for furnishing the other parties to the contract of lending. An unfriendly act of legislation which should exclude the Federal Government from resorting to the money markets of a particular State for loans, though it might not seriously affect the exercise of the borrowing power elsewhere, would be so obviously hostile to the operations of the government, that I am confident it could not be sustained; and such is, no doubt, the effect of the judgment of the Supreme Court of the United States in the case to be presently mentioned. But our laws for the assessment and collection of taxes, supposing them to include shares in the public debt of the United States along with other personal property of the citizen, leave the Federal Government in precisely the same condition with any other borrower. It was the practice of independent governments, as well as of municipalities and trading corporations, anterior to the Constitution, as it is now, to borrow money in their own or in foreign States. The citizens of the several States though not at that time lenders in such loans to any considerable extent, were capable of becoming such. They might lend money to the Federal Government, to the State governments, to foreign nations and to individuals. As to none of these, except the United States, is there any pretense that the State legislature was obliged to waive the right of taxing the lender for his property in the obligation taken to secure the repayment of the money loaned. In like manner, the Government of the United States possesses the same power to borrow in the marts of the old world as of its own citizens. But the foreign lender would of course be subject to the laws as to taxation, prevailing in the country of his domicil. The claim, therefore, which is now interposed on behalf of the Federal Government, is of a right to present itself as a borrower in the money markets of this State, in a different and far more favorable position than our own State government occupies, when it has occasion for a loan, and, of course, than that which other borrowers, public, corporate or private, foreign or domestic, can pretend to. It is, moreover, the claim of a right to impose upon the legislature of the State, disabilities in respect to the taxation of moneys loaned to the United States, which there would be no pretense for challenging against any foreign country, to which they might resort for the negotiation of loans. The claim is not supported by any specific language in the Constitution pointing to such consequences, nor as we have said by the terms of any statute, but simply upon the power to borrow money upon the public credit conferred by the Constitution. Such a power, conferred by such general language, seems to us fully satisfied, so far as the State governments are concerned, when no unfriendly discrimination towards the United States, as borrowers, is applied by the State laws; when the General Government is admitted to negotiate upon the same terms as other borrowers, public or private, with such of our citizens as may choose to become lenders of money, and when they are placed on the same precise footing in all respects, as all other borrowers. Prima facie, the provision simply confers upon the government a capacity to become parties, as borrowers upon the public credit, to a contract of loan. If it had been intended, beyond this, to give them, in the States of the Union, an advantage over all other borrowers, it is certainly remarkable that more explicit language was not used. We give no opinion on the question, whether Congress could enact a law by which the lenders of money to the government, should enjoy the advantage of exemption from State taxation in respect to such loans. Events may occur — perhaps they have already occurred — when the preservation of the Constitution and the continuance of the Union, may depend upon the ability of the government to obtain a seasonable supply of funds, and we would not unnecessarily interpose a dictum which would appear to circumscribe any powers which it may possess. But in the absence of any such statute, and resting upon the general grant of power contained in the Constitution, we are of opinion that the claim to be exempt from taxation cannot be allowed to prevail.

The argument in favor of exempting the holders of Federal indebtedness from State taxation is principally based upon the consideration of the paramount authority of the Federal Constitution over the Constitutions and laws of the States. The preëminence of the former is beyond dispute. It is inherent in the nature of an imperial government, instituted to watch over and protect the interests and welfare of particular local governments. The powers conferred for such purposes must necessarily be absolute and uncontrollable. All general reasoning upon the subject is, however, rendered unnecessary by the explicit provision referred to in the Constitution itself. But before the State enactments can be called upon to yield to Federal institutions, it must satisfactorily appear that there is a conflict between them. Undoubtedly the Federal Government could enter the money market with greater advantage, if it could promise to the lenders an immunity against State taxation in respect to the money to be loaned. But, as no other borrower can offer any such advantage, and as, without it, loans have always been sought and obtained, and, no doubt, will continue to be, the withholding of it cannot be justly considered a restraint upon the borrowing power. What is asked is not in truth the removal of an obstacle, but a positive bounty to the lenders of money to the government. It is claimed that an advantage should be conceded to them which is rightfully withheld from every other lender. Hence, it appears to us that there is no hostility between the laws of this State which attempt to tax its citizens, among the mass of their property, for all their money loaned, without any exception of such as may have been lent to the Federal Government, and the power to borrow money which the Constitution has conferred upon that government. Both provisions can stand perfectly well together, and there is not really any conflict between them.

The power of taxation is as essential to the existence of the State governments as that of borrowing is to the nation. Both undeniably exist. The right of the several States to include the public creditors, in respect to the money owing to them by the nation, among the taxpayers, may be one of great importance. The amount of property existing in that form is now very large; and public measures transpiring at this moment show that it is to be greatly increased. A judgment which should exonerate that mass of wealth from liability to contribute to the expenses of the State governments, might lead to considerable embarrassment. Besides, it would create a class of favored citizens, who could put the tax-gatherers at defiance, while the mass of the community would be left to defray the whole expense of the State and local administrations. This, it is true, should not prevent the rendering of such a judgment, if the true interpretation of the Constitution requires it. But if it shall appear that the power of the Federal Government to contract loans cannot be materially impaired by holding the public creditor liable to pay his share of the public burdens, while the administration of the fiscal affairs of the States will be seriously embarrassed by withdrawing a large mass of the property of the citizens from liability to taxation, those circumstances (which are now actually transpiring) would seem to call for a reconciling construction which will allow both the great political powers to exist without either being essentially impaired. The necessity of such a construction of the Federal Constitution was foreseen while the draft of that instrument was under discussion, prior to its ratification by the State Conventions. One of the most indispensable powers conferred upon Congress was that of laying and collecting "taxes, duties, imposts, and excises." But as the great bulk of the expenses of public administration was left to be defrayed by the States and their local divisions, the national government being limited to external relations and a few subjects of internal government, it was essential that the right of taxation should continue to be enjoyed by the States, to enable them to meet these necessary expenses. They were, however, prohibited from laying duties upon imports or exports, or upon tonnage, without the consent of Congress; but as to all other subjects of taxation, embracing the real and personal estates of the citizens, the Constitution was silent as to the rights of the States. A rigid construction of the provision making the Federal laws, enacted pursuant to the Constitution, supreme over those of the States, would forbid the latter from exercising a concurrent right of taxation over subjects as to which the taxing power of Congress should be applied. Suppose, for instance, that the General Government should lay a land tax, could a State Government do the same thing while the Federal law remained in force? True, if the State tax was of moderate amount, the land-owner would be able to pay both, and thus no embarrassment would arise to the General Government. But it might be said, if you admit the principle of concurrent taxation by the States, it will not be possible so to limit the amount as to prevent inconvenience in the exercise of the Federal power; and the Federal laws are declared to be paramount to those of the States. Hence, it was apprehended that the taxing power of the States might be held to be taken away by the like power which the Constitution conferred upon Congress. This objection was treated of in the 32d and 33d Letters of Publius, written by Mr. Hamilton. He maintained, by a convincing train of reasoning, that the taxing power of Congress was not, in respect to any subjects except imposts, exports and tonnage, exclusive of or superior to that of the States, but that they were concurrent. "The necessity," he said, "of a concurrent jurisdiction in certain cases, results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution." (Federalist, No. 32.) He insisted that it was not a case of repugnancy in that sense which would be requisite to work an exclusion of the States. While he admitted that it was possible that a State might tax a particular kind of property in a manner which would render it inexpedient that a further tax should be laid on the same subject by the Union, he still held that it would not imply a constitutional inability to lay such further tax. He conceded that the particular policy of the national and the State systems might now and then fail to coincide exactly, and that forbearance might be required. "It is not, however," he added, "a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a preëxisting right of sovereignty." (Id.) And he concludes, as the result of the whole argument, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent they might stand in need of, by every kind of taxation except duties on imports, exports and tonnage. (Federalist, No. 33.)

The repugnancy between the concurrent powers of taxation residing in the General and in the State governments seems equally as striking as that which is alleged to exist between the Federal power of borrowing money and the State power of taxing all the property of the citizen, including his money invested in loans to the government. It may be said that the latter power can be exerted to an extent which would impair the efficiency of the other. But such an effect, if produced, would be incidental and indirect. State taxation might, it is true, supposing a very extreme case, be carried to such an extent that nothing would be left to lend to the nation. But if no unfavorable discrimination is made as to money invested in federal loans, it cannot be alleged that such excessive taxation would be any more hostile to the borrowing power of the General Government than any other species of State misgovernment; and it can scarcely be pretended that the Federal institutions are supreme in such an absolute sense that any State power which, by a possible abuse, may impair the efficiency of some national attribute, is necessarily abrogated. Indeed, the complaint on the part of those who oppose the claim of the State is, as has been already remarked, not so much that our State tax law conflicts with the Federal power to borrow money, as that it does not concede to the Union superior rights in our money market over those enjoyed by any other class of borrowers.

It remains to notice the judgments of the Supreme Court of the United States which, it is argued, have laid down principles which lead to the entire exemption of Federal stock from State taxation. In McCullough v. The State of Maryland (4 Wheat., 116), the question, in substance, was, whether the issues of bank notes by the Maryland branch of the Bank of the United States could be subjected to a stamp tax under the laws of Maryland. That State had passed an act requiring banks transacting their business in that State, but which were not chartered by the State legislature, to issue their notes on stamped paper on which a certain duty was to be paid, but for which any bank might commute by paying a tax of fifteen thousand dollars a year in advance. A heavy penalty was provided against any bank officer who should issue unstamped notes; and the action was brought against McCullough, the cashier of the Baltimore branch of the Bank of the United States, to recover penalties for a violation of the act. The constitutional validity of the act of Congress incorporating the bank was largely discussed, and was passed upon by the court; and its constitutionality was sustained. The bank was considered a convenient, useful and essential instrument of the government in the prosecution of its fiscal operations, and its establishment by Congress was held to be the constitutional exercise of the power "to make all laws which [should] be necessary or proper to carry into execution" the authority granted to the General Government. Then the question as to the power of the States to tax the bank or its branches was considered and determined. But when it had been once settled that the bank was a constitutional agency and instrument for the transaction of the moneyed operations of the government, it followed necessarily, as it seems to us, that it could no more be taxed by State authority than the treasury department, the mint, the post-office, or the army or navy; and it was upon this ground that the Maryland statute was held to be unconstitutional. The State power of taxation, which was admitted to embrace everything which existed by its own authority, or which was introduced by its permission, was held not to "extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States." (See opinion of Chief Justice MARSHALL, p. 429.) The same question again arose in Osborn v. The United States Bank (9 Wheat., 738), which was an action brought to test the validity of a statute of the State of Ohio, by which an annual tax of $50,000 was imposed upon the Ohio branch of the Bank of the United States, to be collected by means of a warrant to be issued by the auditor of the State. The question was again elaborately argued and considered by the court, and the exemption of the bank and its branches again declared, on the ground that the institution was an instrument, or, as it was several times called in the opinion of the court, a machine, for carrying on the moneyed operations of the national government. In the State laws under consideration in both these cases, the branches of the bank were taxed, not in respect to their property, but, eo nomine, as banks, and because they were banks. Perhaps it may be inferred from the reasoning of the court that they would have been held equally exempt from taxation, if the tax had been laid on the corporation in respect to its capital or personal property. No idea, however, was entertained that the money which was invested in the stock of the bank was thereby withdrawn from State taxation. Indeed, such a conclusion was explicitly disavowed in the opinion of the Chief Justice, in the first mentioned case. "This opinion," he says, "does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid on the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional." (4 Wheat., 436.)

Enough has been said to show that these cases bear no analogy to the one before us. But, in Weston v. The City Council of Charleston (2 Pet., 449, anno 1829), the subject of State taxation of the debt of the United States, in the hands of an individual, came directly before the Federal Supreme Court, and the judgment was against the right to lay the tax. The case differs from the present only in the circumstance that the tax was not laid upon the bulk of the property of the citizens, but only upon certain specified securities, and that it was imposed upon the United States stock eo nomine. It was imposed by the municipality of the city of Charleston, South Carolina, under authority derived from the legislature of that State. It was laid, as the report states, "upon all personal estate consisting of bonds, notes, insurance stock, six and seven per cent stock of the United States, or other obligations upon which interest has been or will be received during the year, over and above the interest which has been paid (funded debt of this State, and stock in the incorporated banks of this State and the United States Bank, excepted"); and the amount of the tax was "twenty-five cents upon every hundred dollars." Real estate does not appear to have been embraced. Neither were goods or personal chattels of any kind, or slaves, or the stock of the General Government paying less than six per cent, or simple contract debts due to the taxpayer, or individual obligations on which, for any reason, interest should not be paid within the year; and the public debt of the State, the stock of all the State banks, and that of the Bank of the United States, were in terms excepted. It was not, therefore, a tax upon the property of the taxpayer generally; but particular kinds of property were selected from the mass, embracing, in all probability, far less than a moiety of the private property of the city, and the tax was assessed upon that, to the exoneration of all the residue. And the tax imposed was not limited to the aggregate of the public charges for the year; but an arbitrary sum was exacted of twenty-five cents on each hundred dollars, whether that should be more or less than the exigencies of the city government should call for. The different system upon which the taxes of this State are assessed, has been already shown. Under the ordinance of the city of Charleston, the United States would not enter the money market of that city upon an equal footing with all other borrowers. The State of South Carolina, for instance, could assure those who should lend it money that they should be exempt from city taxation, and the same advantage would be extended to capitalists who were minded to invest in the stock of the State banks or in that of the Bank of the United States. So, money or property invested in mercantile, manufacturing or other business, so long as it did not assume the form of interest-paying obligations, would be exempt from taxation. The law, or ordinance, discriminated, in respect to taxation, adversely to certain classes of securities, including the scrip of the public debt of the United States. The effect upon the government was nearly the same as though the funded debt of the Union had been singled out as the sole subject of taxation. Including other securities, the whole constituting only a part of the property of the citizens which might be subjected to taxation, does not relieve the law from the charge of visiting the whole of the public burdens upon particular kinds of property in exoneration of the mass of it. Such a measure might arise either out of motives of hostility to the property charged or the business out of which it originated, or from a motive of hostility to the interests taxed, or a desire to favor the owners of the residue at the expense of such interests. In either case it might easily be carried to the extent of seriously discouraging or entirely destroying the interests discriminated against. But where all the private property of the community is taxed ratably, no such effect could follow, and under such a system, moreover, there is but little danger of oppressive taxation. In levying such a tax, the legislature acts equally upon all its constituents. In our opinion, the judgment last referred to is distinguishable in principle from the case we are considering, in the point to which we have now referred. If the Federal stock can be taxed separately and specifically at any amount which a State legislature, or a municipality to which its power has been delegated, shall see fit, the government in seeking to obtain money on loan may be effectually driven out of the markets of such State. But such a consequence could never happen under the existing tax law of this State. The idea that the legislature would dare, or would be permitted, by excessive taxation, to destroy or seriously embarrass the interests of all the property holders of the State, is not to be supposed.

Intending as we do to follow implicitly the matured judgments of the Supreme Court of the United States, pronounced in cases arising under the Federal Constitution and Laws, we yet conceive ourselves at liberty to receive or to reject any dicta which were not called for by the facts of the case adjudged, according to our own sense of their conformity or want of conformity to law. We are aware that some portion of the reasoning of the opinion of the court, prepared by the venerable Chief Justice in the case referred to, would embrace the present controversy, though other parts of it we think refer to the tax under consideration as laid specifically upon Federal stock; and that in the dissenting opinion of Mr. Justice THOMPSON, the majority of the court are understood to assume the broad ground that the stock of the United States is not taxable in any shape or manner whatever. But we think it was not legally possible for the court to decide, that such stock could not be taxed along with the mass of the taxpayer's property, under a taxing system like the one prevailing in this State, while determining a controversy in which the actual facts presented by the litigation disclosed a case of taxation discriminating adversely to such stock. Such a question as is claimed to have been decided, was not discussed by the counsel on the argument. The counsel for the plaintiff in error, who was the party seeking to avoid the tax, did not contend that the stock would be exempt under a system which should embrace all property or even all public funds. He said: "The ordinance does not impose a tax upon all public funds, but specifically on the six and seven per cent stock of the United States. Thus, there are selected as the particular objects of taxation, these debts of the Government of the United States." And the counsel laid before the court as a part of their argument the opinion of three of the judges of the Constitutional Court of South Carolina, who, holding that the stock was not taxable, dissented from the opinion of the majority: But they placed their dissent on the ground that the tax was upon the stock, eo nomine, and was thus a burden imposed upon the credit of the United States.

We differ with natural reluctance from even an obiter dictum of so great and wise a judge as Chief Justice MARSHALL, especially when apparently concurred in by a majority of the judges of the national tribunal of last resort; but we are happy to know that if we have fallen into an error, it can readily be corrected. If that eminent court shall, upon a reconsideration of the question, adjudge that stocks of this description are universally exempt from taxation, we shall cheerfully conform our judgments to such decision; but until such review shall be had, we think it safer to follow the direction of our own convictions. The question is confessedly one of very great importance. If we determine it in favor of the taxpayer, the public authorities cannot appeal to the Federal court, as it is only in the case of a right, claimed under the Constitution or laws of the United States, which has been denied by a State court, that the national tribunal has jurisdiction, whereas the judgment, which we actually render, can be carried immediately to the court of the last resort.

The judgment of the Supreme Court is affirmed.

MASON, J., also delivered an opinion for affirmance; SELDEN, LOTT, JAMES and HOYT, Js., concurred, without however passing upon the question first discussed, as to the construction of our statutes, as to which four of the judges were understood to express a different opinion from that stated by Judge DENIO.

The taxing power of this State does not extend to stocks issued by the Government of the United States. This proposition, in its broadest sense, was determined by the Supreme Court of the United States in the case of Weston et al. v. The City Council of Charleston (2 Pet., 449). In that case the corporation of the city of Charleston, deriving its powers from the State of South Carolina, had passed an ordinance subjecting personal estate within the city to taxation, and enumerating in the list of things to be taxed six and seven per cent stocks of the National Government. The plaintiffs, being the owners of such stocks, applied to the Court of Common Pleas for the Charleston District, for a writ of prohibition to restrain the city council from levying the tax on those stocks; on the ground that the ordinance was, in that respect, contrary to the Constitution of the United States. The prohibition was granted. The proceeding was brought into the highest State court for review, where the decision of the Common Pleas was reversed, and a decision was made that the ordinance was constitutional and valid. From that decision the plaintiffs brought error into the Supreme Court of the United States. In that court a preliminary question arose whether the judgment of the State Court was reviewable under the judiciary act of Congress. That question was decided in the affirmative; and then the only point to be determined was whether, by force of the Federal Constitution, the stocks of the Government were exempt from taxation in the States, and in the cities of the States. After a very elaborate argument, Chief Justice MARSHALL delivered the opinion of the court, holding that the ordinance of the city of Charleston was unconstitutional, so far as it subjected such stocks to taxation. The judgment of the State Court was accordingly reversed, and a judgment was directed to be entered declaring it to be the opinion of the court that the ordinance was repugnant to the Constitution and void.

This decision was pronounced by the high tribunal appointed by the Constitution itself to be the interpreter of its provisions. It has never been departed from, and, I think, never questioned in the slightest degree. It would therefore be entirely inappropriate for us to suggest the reasons by which the conclusion is supported. It would be, moreover, a work of supererogation, because the opinion of Chief Justice MARSHALL is not only convincing, but it leaves nothing to be added. It should be observed, however, in reference to what has been said in the present case, that the decision proceeded on the broadest possible ground. No suggestion was made in the reasoning of the court that the Government stocks had been invidiously selected for taxation with any purpose hostile to the Government or laws of the Federal Union. They had been assessed as the personal estate of individuals, and like other personal estates; and the simple and sole inquiry was, whether any power resided in the States, or in municipal bodies created under State authority, to tax them. This was determined in the negative, and we are bound by the decision. Upon all questions of conflict between the Constitution and laws of the Union and the constitutions and laws of the States there can, in the very nature of our political system, be but one rule of decision, and that rule must be declared in the last resort by the Supreme Court of the United States. In the consideration, therefore, of the question now before us, we must proceed on the fundamental assumption that stocks of the United States Government are absolutely exempt from taxation by any power in this State.

According to the assessment laws of this State, property is not taxed by enumeration or specification. All real and personal estate within the State is liable to taxation, with certain exemptions. (1 R.S., 387, § 1.) The local law or ordinance of the City of Charleston, adjudged to be void in the case which has been cited, enumerated the different species or kinds of property upon which revenue was intended to be raised, including the government stocks in the specification, the prescribed rate of taxation, however, being uniform. If in the case now before us, the exemption were claimed by an individual instead of a corporation, and if our law made no exception in favor of property exempt under the Constitution of the United States, the difference in circumstance between the case and the one determined by the Federal Supreme Court would be simply that which exists between taxation of all property without exception and taxation of certain classes, by a specification which includes property exempt under the Constitution of the United States. The taxing power of a State may be exerted in either of these modes as to all property which can be taxed. In the latter mode it cannot be exerted so as to embrace stocks issued by the United States, because the attempt to exert it is in violation of the Constitution. The fundamental question in this case, I think, is whether that description of property can be and ought to be embraced in assessing, according to the other mode, the personal estate of an individual or a corporation. I am satisfied for reasons to be presently given, that no distinction in this respect can be made between an individual and a corporation.

It cannot be denied that State power might be exercised more inconveniently, not to say more dangerously, to the Federal Government in one of these modes, than in the other. In the one, the power might be used so as to exempt the mass of property belonging to the citizens of a State or municipality, and so as to cast the burden of State expenditure upon the credit of the Union. In the other, taxation is necessarily uniform upon all property, and flagrant abuse of power is perhaps impossible. Nevertheless, it seems to me, the question does not depend upon these considerations. As to all subjects over which the taxing power of a State extends, there are no limitations depending on the mode of its exercise. Discrimination between different kinds of property may be made in the pleasure of the legislature, where the right of taxation exists at all. Every holder of United States Government stock is a creditor of the government, and the value of all such stocks is more or less dependent on their exemption from burdens imposed by the States. If we admit the right, to tax this credit in any mode and to any extent, we must admit it in a different mode and to a greater extent. There is no limit to the principle. The acknowledgment of the right in any degree, involves a conflict between the Federal Union and the parts of which it is composed. But as the Union is supreme in the exercise of all its powers, including the vital one of borrowing money, no authority can be constitutionally opposed to it while confined to the exercise of those powers. This is a principle which demands the absolute exemption of the national credit from State taxation. Such, I understand to be the doctrine of the Supreme Court of the United States, and as such we are to accept it.

This would be my conclusion if the State of New York had, by its legislation, attempted to subject this class of property to taxation. But I am satisfied that no such attempt has been made. By our statute all lands and all personal estates within this State are made liable to taxation, subject to certain exemptions. (1 R.S., 387, § 1.) The first of those exemptions is of "all property, real or personal, exempted from taxation by the Constitution of this State, or under the Constitution of the United States." (§ 4.) The force of this exemption should be carefully considered. We have seen that these public stocks cannot be assessed in the mode of enumeration or specification; all such attempts being repugnant to the Constitution of the United States. Now if the exemption declared by the statute, in the words just quoted, could be understood as referring to that particular mode of assessment, they most clearly would not of themselves prohibit the administrative or taxing officers from rating an individual in a sum equal to the value of all his personal estate without any deduction for government stock which he might own. On that supposition, the only question would be one of power in the State Government, which has been considered. But the words of the statute can have no such reference, and admit of no such interpretation; because there is no such mode of assessment in this State. Our laws of assessment contain no specification of the subjects of taxation. They provide for a valuation of the estate of the taxpayer in mass, of whatsoever it may consist, and consequently if he owns anything which is exempted by law, its value must be deducted from the value of the mass. It is the same thing as to say that property not exempt, and no other, is to be valued and taxed. Every exception contained in the statute of things from taxation, and there is a considerable number of them, necessarily refers to the actual system of taxation in the mass, for we have no other; and all such exceptions are to be interpreted accordingly. The conclusion is plain. The Constitution of the United States, according to its true interpretation, exempts the national credit from taxation by State power, and the prohibition has the same force and effect as if it were declared in express words. The legislature of this State, in providing for taxation of personal estate of its citizens in the mass and according to value, has expressly excepted whatsoever is exempt under and according to the Federal Constitution. Putting aside then the question of power, whether it would be possible to evade the Constitution by that mode of assessment, the legislature have declared, in a manner too plain to be mistaken, that no such evasion is intended. They have provided for aggregate or gross valuations of property, excepting therefrom such things as are exempt, and they have declared in general or particular terms what those things are. It is a necessary result that those things are to be omitted in such valuation.

This conclusion may, perhaps, be rendered still more evident, if we observe that the national Constitution exempts nothing from taxation by any express words of that instrument. Our legislature, therefore, in making the exception of which we are speaking, refer to property which is exempted not by any express language, but "under," or according to the Constitution; and there is no room to doubt that they had in view the very class of property now in question, because at that time, the Constitution had been interpreted in this respect, and the right of exemption ascertained and declared by the judicial power of the Federal Government.

In order to be fully understood on this point, I observe once more: The credit of the United States Government is admitted to be exempt from taxation in the States; but the suggestion is made that this applies only to taxation eo nomine, or by enumeration and specification of the thing itself, a suggestion which leaves the States at liberty to rate their citizens according to the value of their property in mass, and without any deduction of that, which is thus exempt. Our own legislation is fatal to this argument, because under our statutes all taxation is according to this mode; and those very statutes declare that whatever is exempt under the national Constitution, shall not be included in the valuation. The exemption, therefore, of the stocks of the United States Government, rests not only upon the want of power in the State, but upon the intention of its legislature.

I come now to a supposed distinction unfavorable to corporations, in this State, which may own the kind of property now in question. The very able and discriminating counsel who has argued this case for the respondents, has relied mainly on that distinction. Feeling, I presume, the force of the considerations which have been urged, he has scarcely denied that if Government stocks, owned by an individual, had been included in an assessment against him, a correction of the roll could be rightfully demanded; but he has insisted that no such correction can be claimed by a corporation. This result is claimed to flow from the manner in which our assessment rolls are made up, and corporations are rated under our statutes.

For myself, I feel very little difficulty in this branch of the case. In the first place, if it has been shown that stocks of the United States Government cannot be subjected to taxation, when owned by an individual, the rule is manifestly the same when they are held by a corporation. The rule is the exemption of the thing or subject, and it has no respect to the ownership. There is not one interpretation of the Federal Constitution when an individual claims exemption under it, and another, when a corporation makes the same claim. The suggestion has been made, that the legislature may tax corporations in any mode, and to any extent, as the price of the privileges and franchises conferred in their charters. This is true, as to all subjects to which the taxing power of the State extends. But when a corporation acquires property which is absolutely exempt from all burdens imposed by the States, under the higher authority of the Constitution of the United States, by inevitable logic such property is acquired and held free from taxation. In this State, all taxation is upon property. It is the same thing in substance to say that it is upon the owner in respect to property. If the holder of Government stocks is charged because he buys and owns them as a part of his wealth, to the extent of such charge their value in market is depreciated and the credit of the Nation is taxed, and it becomes perfectly indifferent whether a natural or an artificial person is the proprietor. The exemption, if it exists at all, is the result of a constitutional principle which operates in all circumstances, and follows the property wherever it goes. So, too, the law of this State is of universal application. The language of the statute is that "all lands and all personal estate within this State, whether owned by individuals or corporations, shall be liable to taxation," subject to certain exemptions afterwards specified; and among those exemptions as we have seen, is the one which includes stocks of the United States. If this language does not apply the same rule of taxation and exemption both to individuals and corporations, I greatly misapprehend its meaning.

The subject is, however, perhaps somewhat obscured by the statutes which regulate the mode and details of assessing corporations. By the Revised Statutes, the assessors are directed to enter upon the rolls the names of corporations, and under each name the amount of capital stock paid in and secured to be paid. The quantity and value of real estate are to be entered in the second and third columns. In the fourth column, they are directed to insert the amount of capital stock paid in, and secured to be paid in, deducting the sums invested in the real estate, and the amount of the stock held by the State, or by literary and charitable institutions. (1 R.S., p. 415, § 6.) In the fifth column, of what is called the corrected assessment roll, the actual amount of the tax imposed is to be extended (id., § 15), but how that amount was to be determined, that is to say whether by the real or nominal amount of capital, was not expressly directed in the Revised Statutes. In 1853 those statutes were so amended as to bring within the influence of taxation the surplus profits or reserved funds of corporations, exceeding ten per cent of their capital stock, and, also, so as to authorize a commutation of taxes in the case and manner particularly set forth. (Laws of 1853, ch. 654, p. 1240.) In 1857 an act was passed which, after repealing in the first section all antecedent statutes which authorized a commutation of taxes, and amending in the second section the previous provision as to the fifth column of the assessment roll, proceeds in the third section to declare, that "the capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds exceeding ten per cent of its capital after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws of this State, shall be assessed at its actual value, and taxed in the same manner as other real and personal estate in the county." It is said that prior to this act of 1857, corporations were to be taxed according to the nominal and not the real value of their capital or stock; and this it is supposed, in some degree, favors the views of the respondents in this case. The argument, if I understand it, is, that according to this rule of taxation, the assessors or tax commissioners were to consider nothing but the sum of the capital subscribed and paid or secured (until surplus profits were included in 1853), and could not inquire as to the things in which the capital was invested, so as to ascertain the real value of the corporate estate, or whether any part of it was exempted from taxation.

It appears to me that this argument is plainly fallacious. The Code of taxation in the Revised Statutes begins with declaring the real and personal estate both of individuals and corporations to be liable to taxation, subject to certain exemptions, and it then declares the exemptions applicable alike to both. In the subsequent titles, the mode and details of assessment are considered and provided for, while the exemptions are not again referred to. But these must be understood as qualifying the entire Code. Thus, in the case of individuals, the mode of making up the assessment rolls is prescribed, and it is directed that "the full value of all personal estate" shall be entered in the fourth column. (1 R.S., 391, § 9.) Moreover, in a fifth column, the actual amount of the tax is to be extended by the board of supervisors. So precisely, as we have just seen, it is in respect to corporations. The original capital stock is to be set down, and the tax is to be extended in the same manner. No one ever supposed that the prescribed mode and form of assessing an individual could deprive him of the exemptions antecedently declared in his favor. Why then should the same mode and form of proceeding in the case of a corporation have that effect? I am sure this argument rests upon no foundation. If it be said there is no authority in the statutes for correcting the roll in this respect in favor of the taxpayer belonging to one class, it is equally true as to the other class. And by proving too much, the argument is demonstrated to be unsound.

Aside from all questions of exemption, it is not now very material to inquire whether before the act of 1857 the nominal instead of the real value of the capital or stock of a corporation was the standard, and the only standard of assessment.

On this point the statute quoted from the Laws of 1857, leaves no longer any doubt. The leading design of this act was to abrogate the practice of assessing corporations according to nominal values, and to introduce the principle, far more reasonable and just, of taking actual value as the standard. This design was accomplished by the use of language too plain to require comment. That such is the interpretation of the statute has already been determined by this court. ( Dolloway v. The Oswego Starch Factory, 21 N.Y., 449.)

In applying the principle thus introduced, the assessor must of necessity have or acquire some knowledge of the actual property, funds and estate which corporations possess, as well as of the liabilities against them. These are the circumstances, and the only ones, which can determine the actual value of their capital or stock. If the shares held by individuals are a subject of sale in market, the sales no doubt are evidence of such actual value; and in the absence of other knowledge, the assessors may act upon that basis. But this evidence is often wholly wanting, because, in very many instances, sales of shares are nearly or quite unknown. Again, in instances still more numerous, evidence of this kind will be entirely fallacious. There is no property so liable to gambling and speculation, as stock in corporations. Its value is often unknown to the large body of the holders, because those having leading interests and concerned in the management conceal such value for their own private purposes. Stocks may be, and frequently are, inflated or depressed by those who wish to sell or to buy. They are subject, moreover, to all the vicissitudes of the money market. They go up or down in the fullness of expectation and hope of to-day, or in the panic of to-morrow. Actual value is the result to be arrived at, for such are the words of the statute, and the inquiry, therefore, must have a primary regard to the property and estate, which alone impart such value. I have endeavored to show that without this statute of 1857, the argument for the respondents, which rests upon the idea that the sum of the capital subscribed and paid, or secured to be paid, is the sole standard of assessment, fails. But with this statute, which is now a fundamental part of the system of taxation, the very foundation of that argument seems to be removed.

It remains to examine the distinctive theory, upon which the judges of the court below have proceeded in this case. They have conceded that the credit of the United States is universally exempt from taxation. They suggest no mode of assessing such property whether constituting part of the capital of an individual or a corporation. The only ground, therefore, upon which they have been able to sustain the action of the tax commissioners is, that taxation in respect to corporations is not upon their capital or estate, but upon their own stock, as a thing quite distinct from capital. According to this view, the relators have not been assessed in respect to their Government stocks or upon any other property, and have nothing to complain of. This conclusion seems to be derived from the use of the terms "capital stock," in the statutes which prescribe the manner of preparing the assessment rolls.

This theory only needs to be analyzed in order to demonstrate its illusory character. A just conception of the meaning of terms is the first requisite. The word "capital" is unambiguous. It signifies the actual estate, whether in money or property, which is owned by an individual or a corporation. In reference to a corporation, it is the aggregate of the sum subscribed and paid in, or secured to be paid in, by the shareholders, with the addition of all gains or profits realized in the use and investment of those sums, or, if losses have been incurred, then it is the residue after deducting such losses. The corporation as a legal person, is the owner or proprietor of this capital, and there is not a corporation aggregate in the world which ever owned any else except the franchise of being a corporation. The term "stock" is, perhaps, sometimes used with less precision. It may occasionally be employed to denote the same thing as capital. If that were its meaning in the statutes, of course the argument of the Supreme Court in this case would not have even a verbal criticism to rest upon. But, whenever it means anything different from the capital of a corporation, it can refer to nothing else than the interests of the shareholders or individuals. Such interests are called "stock," and the sum total of them is appropriately enough called the "stock" of a corporation. Those interests are the resulting estates of private persons, which flow from the nature of corporate organizations. In some respects, they resemble a chose in action, and thus are so treated in the relation of husband and wife and in other relations. More accurately, I think, they may be called equitable estates, which entitle the holders to share in the income of the capital, which is legally vested in and managed by the corporate body. The material point now is, that corporations themselves never own what is sometimes called their own stock. They have the power and capacity to create and issue stock, but when created and issued it always belongs to the individual to whom it is issued, or to his assignee. In his hands it may or may not be subject to taxation, like other private property in the pleasure of the legislature. In this State such property is exempted by law, because the capital itself held by corporations is assessed and taxed. In saying that corporations never own their own stock, of course I mean that which has been subscribed and paid for or secured to be paid by the shareholders. The capacity which a corporation has within its charter of receiving subscriptions and payment for stock, and then issuing it to the individual who subscribes and pays is a species of valuable right. But this is not material, because the laws of assessment only speak of capital or stock, or capital stock which has been paid or secured; and stock in that condition can never, in the nature of things, be owned by a corporation.

The result of this upon taxation is plain. Property is taxed according to our laws, and the owners are assessed in respect to it. Corporations are not to be assessed in respect to their stock as something distinct from their capital, because in that sense they are not the owners of it. They contribute to the public burdens on the basis of their capital like the owners of private estates, and because they have nothing else which is the subject of taxation. The mode of ascertaining the value of such capital in the assessment rolls is indifferent to the question. The sum of the stock subscribed and paid, for or secured to be paid, may or may not be taken as the presumptive value. In whatever way the result is reached, the burden is imposed on the artificial person or body in respect to the capital or estate of which it is the proprietor, and it is not imposed on the intangible substance called "stock," which is parceled out to individual owners. That this is in accordance with all the principles and analogies of taxation known to our laws, it needs no argument to prove.

Plain as I think this conclusion is, the question is not exhausted without looking at the statutes under which it is supposed to arise. Let us refer to them, keeping in view the theory we are endeavoring to refute, which is, that stock — as meaning something wholly different from the capital or estate of a corporation — is the subject of taxation. The subjects of taxation and those which are exempt from it are precisely defined in the title which preceeds all others in the Code of assessment laws. (1 R.S., 387.) In the very first section it is provided, that "all lands and all personal estate within this State, whether owned by individuals or corporations, shall be liable to taxation," c. Can language more explicitly declare, that it is the capital or estate of corporations which the legislature intended, and not their stock in the sense now contended for? In the 4th section of the same title, the exemptions are specified, and among them (sub. 4) the houses, lands and personal estate of companies incorporated for the reformation of offenders, and (sub. 7), "the personal estate of every incorporated company not made liable to taxation on its capital in the 4th title of this chapter." Now it is this 4th title which contains the provisions for making up assessment rolls against corporations in some of which the term "capital stock" is used. The reference to that title here quoted, and the use of the word "capital" in such reference, prove absolutely that the terms "capital," and "capital stock," are employed in precisely the same sense. Referring now again to the first title, we find a further provision (§ 7), excepting "the owner or holder of stock in any incorporated company liable to taxation on its capital." Here, again, the subject is clearly defined. Stock is not to be taxed but capital is; the one is marked as the property of the individual, the other as that of the corporation.

Passing the second and third titles which relate to the assessment and collection of taxes against individuals, and to subjects connected therewith, we come to the 4th, which relates to corporations. (1 R.S., 414.) In the very first section, we find it declared that corporations shall be liable to taxation on their capital in the manner hereinafter prescribed. The grounds for a verbal criticism, slight as they are, would not exist at all, but for the 6th section which, as we have seen, relates to the assessment rolls. But the very first requirement of that section is, that the assessors shall enter the names of corporations, and the "property" of each in the manner specified, and the first specification is the "capital stock paid in or secured to be paid in." Again, the 10th section of the same title declares that the "capital stock" shall be assessed, c., unless the corporation shall be entitled to commute its taxes, in which case no tax shall be imposed on the "property" of such corporation. Thus we find the word "capital," "capital stock," and "property," indiscriminately used throughout this title to designate the estate of a corporation. It may well be, that before the act of 1857 such estate was to be taken at its nominal value; that is to say, estimated at the amount of capital originally subscribed and paid or secured, without regard to depreciation and loss. This is indifferent, as we have shown. The point of the discussion now is, that the estate or capital at whatever valuation, and not the stock in the sense of that term contended for, is the subject dealt with by the assessment laws. Indeed, we may take the very words on which the criticism arises, "capital stock paid or secured to be paid in." I affirm that these words are descriptive of nothing else than capital. The sums subscribed and paid in, or secured to be paid in, are the capital of a corporation in the real and actual sense. Stock, on the other hand, is paid for and is not "paid in." It is the thing which the subscriber receives in exchange for what he pays in. One of those values, that is the sum paid, is held by the corporation and becomes its capital. The other is given to the shareholder and becomes his stock. They are of totally different natures. The one is the object of taxation, the other is not. This appears to me so plain in reason, and upon the language of all the statutes referred to, that I pursue this point no further.

A single additional observation ought to be made upon the act of 1857. That statute besides introducing, as we have seen, the principle of actual value as the basis of taxation, has declared in express words an exemption of whatever is exempted by other laws, in addition to the exceptions which are made in the assessment rolls. This clause was intended, out of abundant caution, to remove all the differences which could be imagined or suggested between the rules of taxation, as to individuals, and those in respect to corporations. The language necessarily refers to all property which was exempt under preëxisting statutes. It cannot refer to the stock of the corporation, held "by the State or by literary and charitable institutions," because that exception is made in the assessment rolls. In addition to this exception, we have the words "or as shall have been exempted by law," referring certainly to all laws exempting property from taxation. In those laws we find embraced stocks of the Government of the United States; and the right to hold them free from taxation would seem more plain in favor of a corporation than an individual, because the privilege is declared twice, instead of once only.

The judgment should be reversed, and the proceedings re mitted, with a direction to correct the assessment roll.

DAVIES, J., did not hear the argument, and expressed no opinion.

Judgment affirmed.