In re Kilby Bank ( 1839 )

Shaw C. J.

delivered the opinion of the Court. It cannot be doubted, that the resolve of the legislature applies to the judgment recovered against the bank ; the bank has so understood it and has paid the costs. But a question arises upon the construction and legal effect of the resolve. The bank contends, that the resolve releases all taxes accruing' after the 29th of January, 1838; that these taxes accrued at the times fixed by law, to wit, on the first Monday of April and the first Monday of October ; that the tax in question became due on the first Monday of April, .1838 ; that each six months was whole and indivisible, and, therefore, that this was a remission of the whole six months’ tax. On the contrary, the Commonwealth contends, that it was a release pro rata, of the whole tax, in the proportion that the time from the 29th of January to the first Monday of April, bears to the whole six months.

This resolve, like every other instrument, is to be construed according to the intent of the makers, to be ascertained by all the terms and parts of it, and the subject matter to which it applies.

The Commonwealth had judgment for the whole tax, and might have enforced the whole. They might therefore remit the whole, or any part. Had it been their intention to remit the whole, it is much more probable that they would, in terms, have remitted the judgment upon condition of paying the costs. Besides- why should the 29th of January have been fixed on at all ? Why not remit all taxes accruing after October 1837 ? It is probable that the 29th of January was the day on which they stopped payment, or ceased acting as a bank, for the profit of the stockholders; if that were so, it would be a good reason why the tax, treating it as a pro rata bonus for the use of bank capital, should cease at that time. It is argued that the word “from” should be read as synonymous with “after”; but we see no reason for thus construing the language used by the legislature, especially if it would vary ‘ the result. We think the word “from” was used to distinguish that which accrued before, and that which accrued after the day fixed, and implies that the legislature regarded it as accruing pro rata, though pa) able at fixed periods.

Construing the resolve according to the intent, as well as the terms, the Court are of opinion, that the legislature intended to remit as large a part of the semi-annual tax as the time from the 29th of January to the first Monday of April, bore to the whole period of six months, and to reserve the right of the Commonwealth to the balance, with the costs.