Vicksburg Bank v. Worrell , 67 Miss. 47 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

This case presents questions as to the validity and interpretation of that part of the act to amend §§ 557 and 585 of the code of 1880, so as to increase the public revenue, approved March 8, 1888, which relates to banks. It provides for a privilege tax to be paid by banks, and varies the amount with reference to the “capital stock or assets,” and declares that “the privilege taxes imposed upon and paid by such banks * * * shall be in lieu of all other taxes, state, county, and municipal, upon the shares and assets of said banks.”

The act is assailed as being violative of the constitution of the state, which declares that, “ The propei’ty of all corporations for pecuniary profits shall be subject to taxation the same as that of individuals,” Art. xii, sec. 13; and, “ No county shall be denied the right to raise by special tax money sufficient to pay for * * * conveniences for the people of the county; provided, the tax thus levied shall be a certain per cent, on all tax levied by the state,” Art. xii, sec. 16 ; and “Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law,” Art. xii., sec. 20. These provisions of the constitution have been the subjects of discussion and adjudication by this court in several instances, and we refer to the Mississippi Mills v. Cook, 56 Miss. 40; Beck v. Allen, 58 Ib. 143; and Murray v. Lehman, 61 Ib. 283, as presenting what has been said and held, and proceed to state the conclusions we have reached in this case, after full examination and consideration.

The legislature may select the subjects of taxation, and everything not designated as taxable is exempt for the time being.

The subjects of taxation may be classified at the discretion of the legislature, and if all of the same class are taxed alike there is no violation of the equality and uniformity required by the constitution.

It is admissible for the legislature to tax a business, and to provide that payment of a tax prescribed for the privilege of pursuing it shall be a substitute for and in lieu of all other taxes on the means employed in it. The liability to abuse is not an argument against the existence of this power. The constitution establishes the rule of equality and uniformity in the imposition of taxes, but absolute equality is not attainable, and large discretion must be left to the legislature in its effort to execute the constitutional mandate, and it is only where there is a plain disregard of it that the courts can properly interpose to annul legislative action.

If the legislature deems it wise to compound for all other taxes on a particular kind of business, by receiving a prescribed sum as a substitute for all taxes, it must be assumed by the courts that it was the legislative determination that the sum fixed was a proper equivalent for the taxes obtainable in a different mode, and that it was a proper exercise of legislative power. This results, necessarily, from the legislative control over the subjects of taxation, restrained only by constitutional requirements, obligatory alike on the legislature and the courts. Where the particular arrangement of taxation provided by legislative wisdom may be accounted for on the assumption of compounding or commuting for a just equivalent, according to the determination of the legislature, in the general scheme of taxation, it will not be condemned by the courts as violative of the constitution.

It follows from these views that the act under consideration cannot be condemned under sec. 20 of art. xii, of the constitution.

Nor is it assailable under sec. 16, art. xii, for it is clear that the right of the counties under it is limited to the levy of “ a certain per cent on all tax levied by the state,” and the subjects of taxation are to be determined by the legislature. It ivas held in The Mississippi Mills v. Cook, 56 Miss. 40, that the legislature may exempt property from taxation, whether the owners be corporations or natural persons, and this disposes of the suggestion of an objection to the act under examination because of sec. 13, art. xii, of the constitution.

We do not find any valid objection to the law as being beyond the power of the legislature, and the remaining inquiry is as to its meaning — the legislative intent deducible from its language.

We cannot resist the conviction that its plain purpose was to release all taxes on the entire assets of the bank for payment of the prescribed tax, i. e., a tax measured by the capital stock and assets of the bank, which includes profits, surplus, undivided profits, or by whatever name any of its assets may be known or called, and all the real and personal property of the bank. The manifest purpose of the act is to accept in full of all other taxes a sum determinable by the entire wealth of the bank, and it results that the entire assets of the bank, in whatever shape, should be estimated in determining the amount of the privilege tax. The privilege tax imposed upon and paid by a bank on this basis is made a substitute for all other taxes on the shares and assets of the bank. Shares and assets represent or express everything a bank has.

Beal estate bought with funds of the bank, and constituting part of its assets, is exempted as real estate, but is a factor in fixing the basis on which the amount of the privilege tax to be paid by the bank to secure immunity from all other taxes is determinable. The provision of the code of 1880, that “in no case shall the payment of the privilege tax on any bank have the effect to exempt any real estate of such bank from taxation as other real estate,” was stricken from the law by the act of March 18, 1886, amendatory of section 585, and was not restored by the act of 1888, now under review, which makes clear the legislative purpose we have declared to be shown by the lawT — to increase the privilege tax by the assets of the bank in every form and of every kind, and to exempt its assets, because of payment of such privilege, in whatever shape they might be.

The right of the bank to acquire and hold real estate cannot be considered in the matter of taxation. The intent of the legislature was to tax its assets, where they exceed its capital stock, without regard to its right to have them. The question in taxation is, what are its assets ? and not the rightfulness of its possession of a given piece of property by the bank.

In tracing the history of taxation in this state it is discoverable that bank stock has not been taxed as such by name in the hands of the shareholder or owner, but was assessable to the bank. This ■was the case under the codes of 1857 and 1871, and is true under the code of 1880, which adopted the privilege tax it provides as a substitute for other taxation, with a provision, already mentioned, for the taxation of the real estate of banks, notwithstanding payment of the privilege tax.

As we cannot find any conflict between the act of the legislature and the constitution, and the meaning of the law is unmistakable, however unwise and unjust it may be regarded, it must prevail according to its plain reading, and every bank which paid under it, according to its provisions, be held to have secured the immunity from other taxation which it assures. Any bank which did not estimate all of its assets beyond the amount of its capital stock and pay the privilege tax on the larger basis is in default, and did not secure the exemption from taxation declared by the law in favor of those which conformed to its terms.

Decree reversed and cause remanded to the chancery court.