Ontario Bank v. Bunnell , 10 Wend. 186 ( 1833 )

By the Court,

Nelson, J.

The corporation of the village of Canandaigua are declared by the act incorporating it, capable of raising money by tax for certain purposes; which money so to be raised, to be assessed upon the freeholders and inhabitants of the village according to law. Laws of 1815, p. 266, § 3. When this power was granted, the general act of 1813, for the collection of taxes, 2 R. S. 509, was in force, and under it and all previous acts relative to taxes, corporations were not taxed or understood to be taxable for their capital or personal estate; such estate being taxed in the hands of the stockholders, each to the extent of his stock. By the act of 1823, the assessors of each town and ward in the state were required in every year to ascertain according to the best evidence, and set down in their assessment roll the value of houses and lands in such town or ward, owned or possessed by any person residing therein opposite to his name ; and also to ascertain and set down in like manner, the value of the personal ■estate of every such person over and above his debts. Whether, upon well settled principles of construction, corporations might not have been taxed for their capital or personal estate under that act, is a question not material to be examined, as the usage under it was otherwise until 1823, when, by the act for the assessment and collection of taxes passed in that year, it was enacted that assessments should he made and taxes imposed upon all incorporated companies receiving a regular income from the employment of capital, in the same manner as upon individuals. Laws of 1823, p. 395, § 14.

There can be no doubt the term inhabitant includes a corporation occupying an office or building in a town, ward or village, in conducting the business of their corporation for many purposes, and especially with reference to the burthens of taxation for public purposes. By the 22 Hen. 8, ch. 5, it was provided, in the case of bridges broken in any town,] &c, that they should be made by the inhabitants of the county, fyc.; under this clause it has been held by all the courts in England, that every corporation nr body politic, residing in any town, &c. or having lands therein which they occupy, are inhabitants within the purview of the statute. 2 Inst. 703. 1 Burns’ J. 278. Coup. 79. By the 43 Eliz. ch. 2, for the relief of the poor, a tax was directed to be raised upon every inhabitant and every occupier of lands, houses, &c., and under this act corporations are held to be rateable, both as inhabitants and occupiers, Cowp. 84, 3 Burns’ J. 631, and the assessments are upon the real and personal property of the person taxable. 3 Burns' J. 624. See also, 3 Burns’ J. 614, and onward, where cases are collected. Lord Holt held the toll of a corporation taxable. It is said, 2 Bullstr. 354, cited in 3 Bums' J. 640, that the taxation ought to be made upon the inhabitants and occupiers of lands within the parish, according to the visible estates and possessions, real and personal, which they have and enjoy within it. Ch. J. Thompson, in The People v. Utica Ins. Co. 15 Johns. R. 382, upon the authority of the cases which included corporations within the term inhabitants, came to the conclusion, that the word person, in the act restraining private banking, included corporations in the prohibition ; and he reports a case, decided by this court, in which the Clinton Woollen and Cotton Manufacturing Company, under the act of 1813, for the assessment and collection of taxes, were held liable to be taxed for their property, though persons was the only term used, and in which they must be included, if at all. We may from the above cases, upon authority, determine that the plaintiffs are fairly included within the term inhabitants used in the act; and as it is averred in the plea, that they are owners of real estate, and freeholders within the village, I can perceive no reason why they might not be included within the latter term; they may be freeholders, by the express terms of their charter.

But, it is said, upon this principle stockholders residing in the village would be liable to double taxation, first, in their individual capacity, and second, as owners of the stock to the amount they hold. The argument is this : as the charter directs that the tax shall be assessed upon the freeholders and inhabitants of the village according to law, it means according to the general tax law of 1813; and as by the usage and construction of that law, the tax was imposed upon the stockholders and not on the corporation, consequently, in this' case, though the stock be taxed to the corporation, the assessors would still be bound, in pursuance of the general act, to tax it to the individual holders. I admit that there is great, if not decisive force in the argument, if the mode of taxing bank stock by the existing law was the same as it was in 1815 ; but now by law the capital is taxed to the corporation, and not otherwise. 1 R. S. 387, 8. By the first section of the law on this subject, it is enacted that all lands and all personal estate within this state, whether owned by individuals or corporations, shall be liable to taxation, subject to the exemptions afterwards specified. Section 4 exempts the personal estate of every incorporated company, not liable to taxation oh its capital. Section 7 provides that the owner or holder of stock in any incorporated company, liable to taxation on its capital, shall not be taxed as an individual for such stock ; and by subsequent provisions it is enacted that all monied or stock corporations, deriving an income or profit from their capital or otherwise, shall be liable to taxation on their capital, 1 R. S. 414, § 1, and that the capital stock of every company liable to taxation, except, &c. shall be assessed and taxed in the same manner as the other real and personal estate of the county, &c. Now the language of the charter, that the tax shall be assessed upon the freeholders and inhabitants of said village according to law, I apprehend, must be construed to mean, according to the principles and directions of the general tax law existing at the time when the assessment is made and is to be enforced. The expression was obviously used to avoid the necessity of going into the detail of the principles and mode of levying the tax, by a reference to the general law that existed at the time on the subject, and which answered every purpose. But if the law of 1813, which was in force when this charter passed, was the one referred to in the charter to regulate the principles and mode of assessment upon the freeholders and inhabitants, then the act, altered and modified as it was in 1823 and 1830, should equally have that effect. Could it be pretended, if certain articles of proper^ subject to taxation under the law of 1813, as it existed la 1815, had been exempted by a subsequent act, that, those articles were still taxable under the power conferred by this charter? Or if some exempt had been made liable to taxation, that they could not be taxed under it ? Certainly not. As to the subject or species of property taxable and the mode of levying, the charter conveyed to the officers acting under it no information, except by the reference to the general law, and on looking into that law, they must act in conformity to its provisions in this respect as it exists at the time. There are numerous bodies in this state, like the village in question, who possess to a limited extent the power of local taxation, and, I presume, in every instance, the principles and mode of imposing a tax are ascertained by reference to the general law; and we should lament to be obliged to give to their several powers such a construction as would prevent a participation in the improvements of the system of taxation, which are made from time to time, and to be found only in the general law on the subject. The act now in force expressly forbids a tax upon the individual for his stock in a company liable to taxation on its capital, like the one in question, and there is no law authorizing it, as the act of 1813 is repealed, and I cannot perceive by what authority the trustees in this case could impose such a tax. Upon the whole, I am of opinion the officers in acting under this charter were bound to look to the general law of 1830 for the principles and mode of levying the tax voted to be raised ; that the plaintiffs came within the description of the persons on whom the tax might be imposed, and that their capital stock was liable to such taxation.

It was also objected to the assessment in this case, that the capital transferred to Utica ought not to have been taken into the estimate of the personal estate of the bank. The answer is, that the error is not available to the plaintiffs in this suit; they should have appeared before the proper officers, and applied according to the regulations of the general tax law to reduce the amount; and if they had been improperly refused, there was an appropriate remedy. The amount assessed is conclusive in this action, and cannot be inquired into.

Judgment for the defendants.