Wyatt v. State Board of Equalization

The question in controversy is the meaning of the statute which provides that "every railroad corporation in this state, not exempted from taxation, shall pay to the state an annual tax upon the actual value of its road, rolling stock, and equipments on the first day of April of each year, at a rate as nearly equal as may be to the average rate of taxation at that time upon other property throughout the state." P. S., c. 64, s. 1. Similar language is used in the sections governing the taxation of telegraph and telephone companies (Ib., s. 3), of express companies (Laws 1907, c. 81, s. 6), and of sleeping, dining, and parlor cars. Laws 1907, c. 91, s. 1.

The petition sets up the legal proposition that the rate is to be found by taking the average of the local tax rates, without including the assessment laid upon savings bank deposits and fire insurance capital. The defendants deny the plaintiff's proposition, and the case has been argued upon this point alone. All other questions have been waived for the time being, and the parties have united in an effort to present this controversy unhampered by any collateral issue.

The plaintiff says that his construction was adopted by the court when it acted as the assessing board; that the question was decided the same way in 1883, and that no change has been made in subsequent re-enactments of the statute; and that a construction including the savings bank tax in determining the average rate of taxation upon other property throughout the state would necessitate a conclusion that the statute is unconstitutional, unless it were held that the legislature intended to grant to railroads a special exemption supportable under the protective power.

The constitutionality of the statute is material in the present proceeding only as evidence of the legislative intent. If it were discovered that the statute sought to be enforced herein was in contravention of the constitution, the necessary result of such conclusion would be the dismissal of the petition. But whether the legislature can constitutionally burden railroad corporations by imposing higher taxes upon them than upon other owners of property throughout the state, or whether they may without violation of the organic law relieve them by a special exemption from the whole or a part of the taxes generally assessed upon property, need not be considered. Judicial decisions in view of which existing legislation upon the subject was originally adopted and subsequently re-enacted establish a legislative intent to treat railroads, for the purpose of taxation, as individuals taxable for the true value of their property at the rate at which other property is taxed in the same taxing district, and exclude any purpose to tax them "for a greater sum than their proportionate and equal share with the other property in the state, ascertained as nearly as it reasonably could be." Boston Maine R. R. v. State, 63 N.H. 571, 572; Boston etc. R. R. v. State, 60 N.H. 87; Atlantic etc. R. R. v. State, 60 N.H. 133; Cheshire County Tel. Co. v. State, 63 N.H. 167; Western Union Tel. Co. v. State, 64 N.H. 265.

The state board of equalization, upon whom the duty of assessing taxes upon railroads is placed, are required to "determine the value of the property to be taxed . . . and the rate of taxation." P. S., c. 63, s. 3; Ib., c. 64, 8. 4. In the performance of of this duty, it is alleged that the board added together the taxes assessed and collected by municipal officers, those assessed and collected upon unincorporated places by state and county officers, and those collected by the state treasurer upon savings bank deposits, the capital stock of building and loan associations, and insurance companies, and obtained the average rate of taxation by dividing the total amount of such taxes by the total of the selectmen's inventories, the valuation of unincorporated places, the savings bank deposits, and the building and loan and insurance capital. They then assessed the railroads of the state at the rate which in this way they found all other property in the state was assessed.

If one person owned all the property in the state except the railroads, although he paid taxes at different rates upon different portions of it, the average rate of the taxation of the whole would be obtained by the division of the total tax by the total amount of property upon which the several sums were levied. As between two persons, one owning all the railroads and the other owning all the other taxable property in the state, the taxation of the total property of each at the same rate would produce the equal division of public expense required by the constitution. As the taxation of all other property in the state at the same rate as railroads are taxed would produce in the aggregate the sum levied by varying rates on different classes or parcels of property, the owner of the whole could not complain that he paid too much, or the railroad owner too little, because each would pay the same. As the property in the state is divided among many, who hold the different classes of property in varying ratios, it follows that, as between certain individuals and railroads generally, some individuals will pay more and some less than is paid on the same value of railroad property. But so long as railroads pay upon their property the same amount as is paid on the average throughout the state upon that amount of property, their share of the public burden is borne by them. This is the rule applied in tax appeals from local assessors. Amoskeag Mfg. Co. v. Manchester, 70 N.H. 200. As the method adopted by the board in assessing railroad taxes assesses upon the $28,000,000 of railroad property (the appraisal of which is not in question in this case) the same amount in taxes as is assessed upon the average upon each $28,000,000 of property throughout the state, the result complies with the constitutional rule of equality in taxation, which "requires that throughout the same taxing district the same tax shall be laid upon the same amount of property." Amoskeag Mfg. Co. v. Manchester, 70 N.H. 336, 334. As the method of the board is apparently mathematically proportional and constitutionally just, the only ground upon which the result can be attacked is that some one or more of the taxes considered by them in finding the average is not a tax upon property and cannot be considered in the distribution of the burden of taxation placed upon property. Amoskeag Mfg. Co. v. Manchester, 70 N.H. 336.

The plaintiff contends that the tax upon savings bank deposits, building and loan associations, and insurance capital should not be considered. It is not suggested that the tax on building and loan associations stands any differently from the tax on savings bank deposits. So far, however, as the consideration of the tax upon insurance capital is concerned in this case, the question is purely academic. The tax is so inconsiderable as not to affect the result. Considering it, the exact arithmetical average is a small fraction of a cent less than the rate ($1.72) found by the board. Excluding it, the same rate is a similar fraction more than $1.72. In either event it cannot be held that the rate found by the board is not the average rate "ascertained as nearly as it reasonably could be." Boston Maine R. R. v. State, 63 N.H. 571, 572. The substantial question is as to the savings bank tax.

The plaintiff's contention is, that the tax levied with reference to some $66,000,000 of what the board considered property, owned by 183,243 depositors, — nearly one half the population of the state, — should be excluded from the computation, and the tax be determined by the rate upon the remaining $238,000,000, i.e., that more than one fifth of the whole property taxed should be omitted from the calculation. Upon the concession of the plaintiff as to the power of the legislature, the question appears to be, as stated at the outset, purely one of statutory construction. Giving to the language of the section its ordinary meaning, the only question raised by the plaintiff's contention, that the sum collected by the state from savings banks should not be included in computing "the average rate of taxation . . . upon other property throughout the state," is whether the sum so collected is a tax "upon other property throughout the state." As there is no contention that this sum so collected is not a tax of some sort, or that it is not exacted "throughout the state," the question is whether the savings bank tax is a tax upon property. As the question is the meaning of the statute, — what the legislature intended by the words used, — the exact point in issue is much narrower, and is: Was the savings bank tax understood by the legislature, in 1891, to be a tax upon property?

Savings banks, under provisions of the Public Statutes enacted contemporaneously with the section under consideration, are required to pay taxes in two ways. They are taxed for all real estate owned by them in the towns where it is situate, precisely as all other individuals and corporations, except railroad, telegraph, and telephone companies, who are not so taxed for real estate used in their ordinary business. P. S., c. 64, s. 12. This is conceded to be a property tax. The tax which is collected by the state treasurer is not based upon property owned by the corporation; it is determined by the amount the bank owes its depositors. Section 5, chapter 65, Public Statutes, requires the payment of "one per cent upon the amount of the general and special deposits on which it [the bank] pays interest." The tax is laid upon the depositors' interest, and not upon the property of the bank. The property of the bank, except real estate, the value of which is deducted from the amount of the deposits taxed, is not taxed. P. S., c. 65, s. 12; Laconia Savings Bank v. Laconia, 67 N.H. 324.

From the manner in which the tax is determined, it can be argued with great force that this tax is not a tax upon property of savings banks. It is so declared in effect in the statute and has always been so understood. But because it is not a tax upon property of the bank, it does not follow it is not a property tax. It is a tax upon the amounts entrusted to the bank by the several depositors. The question therefore is: Was a deposit in a savings bank commonly understood to be property in 1891? For the legislature, in the absence of evidence that the terms employed in a statute have attained a peculiar significance in the law, must be understood to have employed the words in a statute with the meaning ordinarily attached to them. The legislature has directed that the words of a statute should be so construed. P. S., c. 2, s. 2. It cannot be claimed that deposits in savings banks are not commonly understood to be property. But it is not necessary to rely upon common understanding. That they are property is the foundation upon which the following decisions rest: Mann v. Carter, ante, 345, 351; Robinson v. Dover, 59 N.H. 521; Berry v. Windham,59 N.H. 288. The only possible basis for doubt as to the meaning of the plain terms of the statute is confusion as to the nature of the tax under consideration. If the tax is upon the deposits and against the depositors, in effect if not in form it is a tax upon property. If it is a tax against the banks merely as corporations, as has been suggested, it can be argued with force that it is not a property tax. The views that have heretofore been held by the court as to the nature of this tax may be incorrect. It may be true that since 1903 a governmental exaction which is not taxation in the sense in which that subject was before that time understood in this state, and which is "an application of property for public charges, but not a proportional division of public expense," is now permissible. Thompson v. Kidder, ante, 89, 94.

But neither of these considerations is now material. The legislature cannot be presumed to have known, in 1891, that the constitution would be amended in 1903, or that the judicial declarations as to the nature and character of the tax, then unquestioned, would subsequently be doubted. The statute must be read in the light of the circumstances then existing: the constitution as it was then written, and the law as it was then declared. Under the constitution as it existed and was interpreted from 1784 to 1903, the only subjects of taxation were polls and estates. Curry v. Spencer,61 N.H. 624. As the savings bank tax is plainly not a poll tax, it must have been regarded as a property tax unless it was understood to be supported, not as an act of taxation, but as an encouraging or discouraging exercise of the protective power. State v. Express Co., 60 N.H. 219, 260,263. Whether the tax was one or the other was the question directly raised and decided in Bartlett v. Carter, 59 N.H. 105; while in Rockingham Ten Cent Savings Bank v. Portsmouth, 52 N.H. 17, 27, 28, the present tax is expressly distinguished from the one half of one per cent on the amount of the capital stock which banks with a capital were formerly required to pay for the benefit of the literary fund (G. S., c. 85, s. 1; R. S., c. 75, s. 1), which Judge Perley, in Nashua Savings Bank v. Nashua, 46 N.H. 389, 399, says "is not named or assessed as a tax, . . . and has more the character of a bonus voluntarily paid for the right to exercise the privilege of banking, than of an ordinary tax."

Bartlett v. Carter was decided in 1879. The provision therein construed was re-enacted in 1891 (P. S., c. 65, s. 5) without change. Applying the familiar rule, that the re-enactment of a statute without change is, in the absence of weighty evidence to the contrary, an adoption of previous judicial construction, we have a legislative declaration that the tax in question is intended as a tax upon the property of the depositors, and not as a privilege tax against the bank. That no different understanding was had of this tax by the legislature in 1891 has also been decided by this court. Petition of Savings Bank, 68 N.H. 384, 386. That the tax differs in method of collection and rate from that on "other property" is expressly recognized by the court; but with those differences in mind, the tax, upon the ground of its history and purpose and the adjudications as to that effect, was unanimously declared to be a tax upon property. By common understanding and repeated judicial definition adopted by the legislative re-enactment of the statute, the tax whose consideration by the board of equalization in determining the average rate of taxation upon property throughout the state is attacked was in 1891 established as a tax upon property, and as such comes within the plain terms of the statute. It may be that by overruling Mann v. Carter, ante, 345, Petition of Savings Bank, 68 N.H. 384, Robinson v. Dover, 59 N.H. 521, Berry v. Windham,59 N.H. 288, Bartlett v. Carter, 59 N.H. 105, and Rockingham Ten Cent Savings Bank v. Portsmouth, 52 N.H. 17, and by rejecting all reference to the history of the legislation and the language of the original act, in which the tax is described as a tax "on the depositors" (Laws 1864, c. 4028), it can now be held that this tax is not a property tax, but is a privilege tax. It may be that the authorities cited in Bartlett v. Carter from other jurisdictions, and upon consideration then rejected as inapplicable here, ought now to be followed. If all this be conceded, the conclusion, if adopted, can have no weight upon the question before the court; for there is no evidence that in 1891 the soundness of the judicial conclusion that this tax was a property tax had ever been questioned. There is direct evidence to the contrary. Petition of Savings Bank, 68 N.H. 384.

It may even be conceded that scientific study of the subject of taxation has developed that constitutional provisions for the division of the expense of government, by taking annually for that purpose a proportionate part of his property from each individual according to its value, does not equally distribute the burden, either in proportion to the ability of each to pay or in fair return for benefits received. Thompson v. Kidder, ante, 89, 92. Even if it could be held that the particular directions of the constitution as to the method of taxation might be controlled by general principles of equality of right contained therein (State v. Express Co.,60 N.H. 219, 247, 250, 255), such conclusions would not aid in the interpretation of a statute enacted at a time when the constitutional rule was universally understood to be equitable and just. Amoskeag Mfg. Co. v. Manchester, 70 N.H. 336, 344.

It is said that the provision of the Public Statutes discussed is a re-enactment, without intent to change the meaning, of the act of 1881 (c. 53), and that the language of this act excluded the savings bank tax. In support of this conclusion, the practice of the court in assessing the tax under a prior statute somewhat similar in terms is relied upon. Consideration of this contention necessitates a reference to the history of railroad taxation and an examination of the earlier statutes relating to the subject — a proceeding always competent and often of great value in the attempt to ascertain the meaning of a particular enactment.

Prior to the Revised Statutes (1842.), there were no special provisions for railroad taxation. Railroad stock, like bank stock, was taxable to the owner in the town in which he resided. Laws 1833, c. 108, ss. 1, 2; Pittsfield v. Exeter, 69 N.H. 336. By the Revised Statutes, a special annual tax of one per cent was imposed upon the value of that part of the capital stock of each railroad expended in this state, to be determined by the certificate of the justices of the superior court, to be paid to the state treasurer and by him distributed, one-fourth to the towns in which the railroad was located in proportion to the capital stock expended therein for buildings and right of way, three-fourths to the towns in which the stockholders resided in proportion to the amount of stock owned in each town, the balance, or the proportion owned by non-resident stockholders, to be retained by the state. R. S., c. 39, ss. 4, 5. Before any tax was assessed at the one per cent rate of the Revised Statutes, the act was amended so that it required the assessment of the tax to be "in proportion, as near as may be, to the taxation of other property on the first day of April . . . in the several towns in which said railroads are situate." Laws 1843, c. 34, ss. 2, 4. This scheme of taxation, modified only as to the method of assessment and by the provision taxing real estate not used in the ordinary business of the roads and the ten years' exemption, is still in force. Pittsfield v. Exeter, supra; P. S., c. 64, ss. 1, 2, 4, 12, 13, 15. In the General Statutes of 1867, the subject of taxation was described as the "capital" instead of the "capital stock" of the railroad, and the actual present value of the capital of any railroad expended in this state was required to be determined by the justices of the supreme court. G. S., c. 57, ss. 1, 2. The tax commission of 1878, as a result of their investigations, reported to the legislature sundry bills, one of which created the board of equalization, and another made new provisions as to railroad taxation. The action of the legislature upon these recommendations established the board of equalization, one of whose duties was to assess the taxes upon the several railroads (Laws 1878, c. 73; G. L., c. 61), and laid down new rules for the taxation of railroads. "Every railroad corporation in this state not exempted from taxation . . . shall pay to the state an annual tax upon the actual value of the road, rolling stock, and equipments on the first day of April of each year, as near as may be in proportion to the taxation of other property in April in each year, in the several towns and cities in which such railroad is located, to be distributed according to existing laws." Laws 1878, c. 70, s. 1; G.L., c. 62, s. 1.

While there are no reported cases disclosing the methods of the prior assessment by the justices, it seems to be established with reasonable certainty that they assessed the tax as a municipal tax of the railroad towns, — that they took no account of the change in 1865 in the method of assessing the tax upon savings bank deposits; and it was claimed by counsel for the state, in Boston etc. R. R. v. State, 60 N.H. 87, that undervaluation of the property in towns for taxation was not considered in making the assessment. In 1879 the board of equalization followed the course that had been pursued by the justices for thirty-six years. They assessed the tax as a municipal tax of railroad towns, paid no attention to the savings bank tax, and did not take into consideration the undervaluation of other property. As the tax rate was not the same in all railroad towns, this action taxed the several railroads at different rates, as must have been the case for thirty-six years before. The act creating the board of equalization provided for an appeal to the supreme court, after the manner of the appeal from the selectmen's assessment, by any one aggrieved. Laws 1878, c. 73, s. 9; G. L., c. 61, s. 9; Ib., c. 57, s. 12; Boston etc. R. R. v. State, 60 N.H. 87, 94.

The Boston, Concord Montreal Railroad appealed from the assessment made against them in 1879, alleging as grievances overvaluation, lack of proportion because of the failure to take into consideration the undervaluation of property by the local assessors, and the lack of uniformity in the assessment of the different railroads. The case was heard by referees, who found the value of the railroad, assessed the tax according to the rate in the railroad towns, but reduced the rate in the proportion in which they found other property was undervalued by the selectmen. The questions presented to the court upon this report were the validity of the assessment at the average rate of taxation in the towns in which the railroad was located and the action of the referees in considering the undervaluation of other property. In support of their contentions, counsel for the state relied upon the uniform practice of the justices in assessing the tax as a municipal tax of the railroad towns and in refusing to consider undervaluation of other property. It is held in the case, solely upon the manner in which the tax was distributed (as to which no change had been made in the law since 1842), that the railroad tax was not a town tax, was not assessable in proportion to the taxation of other property in the towns in which the railroad was located, and that it was "either a state tax, or a tax of a triple character, partly state, partly municipal in respect to the railroad towns, and partly municipal in respect to the stockholders' towns"; and the reduction on account of the undervaluation of other property was approved. The referees were instructed to find the facts necessary to be known if the tax were a state tax, or if either party claimed it was partly municipal. The subsequent history of the case shows that neither party claimed anything on account of the municipal character of the tax, and the case was disposed of upon the theory that the tax was a state tax. The assessment of the referees in proportion to the taxation in railroad towns was set aside, upon the ground that, so far as the tax was a state tax, to be held valid it "must be proportional with the tax of other property throughout the state." Boston etc. R. R. v. State, 60 N.H. 87, 96, 97.

Although this decision overturned the practice of the court for over a generation, it was not deemed necessary in the opinion to refer to that practice, or to consider the argument of the state based thereon. The former practice of the court, apparently regarded as of no weight at all upon the two questions presented by that case, is not entitled to serious consideration upon the question now presented. The case well illustrates the little weight as a precedent attached to decisions upon questions which may have been involved, but which were not presented to or considered by the court. This case contains no reference to the savings bank tax, although the language of the court, that the tax if a state tax "must be proportional with the tax of other property throughout the state," — an expression which it is not probable was used in entire forgetfulness of the decision a year before in Bartlett v. Carter, — includes that tax unless some ground for exception can be found; but the particular question does not appear to have been presented, and it cannot fairly be said to have been decided, though embraced within the language used. Why the question now presented was not raised in that case, or the change heeded by the court in 1865, may not be very material. It should be borne in mind, however, that the practical question differs greatly today, when the taxable savings bank deposits have increased to $66,000,000 and the difference in rate has also been augmented by the increase in the municipal rate, while the bank rate is less than in 1879.

The act of 1864 taxing savings bank deposits was not passed, as has been assumed in argument, to encourage such deposits by a special method of taxation; but its purpose was to secure the taxation of such accumulations, which under existing law were largely escaping taxation. The existing method of taxing railroad corporations furnished the pattern followed. Robinson Hist. Taxation in N.H. 116, 117; Laws 1864, c. 2873; Laws 1861, c. 2493; R. S., c. 39, s. 3; Nashua Savings Bank v. Nashua, 46 N.H. 389, 394,396. While if, prior to 1864, all deposits in savings banks had been taxed at the local rate in towns the change then made would have decreased the taxes received therefrom, the facts that deposits of non-residents were not taxed at all, that deposits under $300 were not taxed, — the average deposit being less than $200 (Bank Comm'rs' Rep. 1864), — and that depositors could offset money on which they paid interest, practically exempted nearly all deposits. The result of the law was to tax property not before taxed and to furnish additional revenue to towns. Any computation based on the assumption that, but for the legislation of 1864, all deposits of taxpayers in towns would have been taxed at the local rate, is without basis in fact and misleading. The argument based upon the claim of partial exemption, — that because the legislature, under the practical construction given the constitution, have the power to select the subjects of taxation and thereby exempt classes of property not named (Canaan v. Enfield District ante, 517), they can limit the proportion to be paid by particular property, — is equally unfounded in law, as has been recently held in Massachusetts. Opinion of the Justices, (Mass.) 84 N.E. Rep. 499.

The court, in 1880, having declared the provisions for railroad taxation to be in conflict with the constitution, the legislature at the next session repealed the provisions requiring every railroad corporation to pay "an annual tax as near as may be in proportion to the taxation of other property in the several towns and cities in which such railroad is located," and amended the section so "as to require every such railroad corporation to pay an annual tax as near as may be in proportion to the taxation of other property in all the cities and towns of the state." Laws 1881, c. 53. The occasion of the statute was the decision above referred to. Its purpose was to bring the statute within the constitutional requirements announced by the court, that such tax as a state tax "must be proportional with the tax of other property throughout the state." Boston etc, R. R. v. State, 60 N.H. 87, 96. The form used to express this purpose was probably suggested by the act for the taxation of railroads proposed by the tax commission of 1878. Tax Comm'rs' Rep. 175. That the language was understood to have the meaning of that used by the court appears from a note on page 95 of that case: "By c. 53, Laws of 1881, the tax is assessable in proportion to the taxation of other property throughout the state." This note must be chargeable either to Judge Ladd, the reporter, or to Chief Justice Doe, the author of the opinion. As the view of either, the note is evidence of weight that the language of the act of 1881 was understood to have the meaning of the language used in the revision of 1891.

But there is other evidence. By chapter 54, Laws 1878, telegraph companies were required to pay a tax of one per cent annually upon the value of their lines, to be appraised by the board of equalization. G. L., c. 62, s. 14. By section 2 of chapter 53, Laws 1881, above referred to, the provision for the taxation of telegraph companies was amended so as to require them to "pay an annual tax as near as may be in proportion to the taxation of other property throughout the state, upon the value" of their property made taxable by the statute; and the board were required "to assess said telegraph property at the average rate of taxation of other property throughout the state." The two forms of expression are used in the same act. There is no ground for holding that the legislature intended to, or understood that they could, apply a different rule in the taxation of railroads from that by which they provided telegraph companies should be taxed. It must be concluded that the two expressions had exactly the same meaning. The latter is the form used by the court in the decision from which the legislation resulted. If the reference to cities and towns in section 1 would authorize the conclusion that only property taxed by city and town officers was referred to, the language is broad enough to include all property taxed in cities and towns, whether the tax is collected by municipal or state officers. As the expression used in section 2 of the act contains no terms implying a restriction to taxes collected by municipal officers, it follows that the terms of section 1 having the same meaning were not intended to be so restricted. Telephone companies, in 1883 (Laws 1883, c. 110), were required to "pay an annual tax, as near as may be in proportion to the taxation of other property throughout the state," and the board of equalization were directed to assess their property "at the average rate of taxation of other property throughout the state." In 1891, the commissioners in preparing the Public Statutes adopted the language found in the opinion of the court in60 N.H. 87, and in the statutes taxing telegraph and telephone companies "throughout the state" in place of "in all cities and towns of the state" (P. S., c. 64, s. 1), indicating in the margin that the change was not intended to alter the meaning. The only possible reason for the change was the belief that the new language expressed more correctly, with less liability to misunderstanding, the meaning of the old. If a meaning can be deduced from the old which is not fairly attributable to the new, it does not follow that this meaning should be ascribed to the new, but the new language is evidence of the meaning of the old.

It is urged that the question now raised was decided in accordance with the plaintiff's contention in Boston etc. R. R. v. State, 62 N.H. 648. If this claim be correct, a peculiar and extraordinary situation is developed. The case was decided in June, 1883, and does not appear to have been forgotten or overlooked. It is cited 68 N.H. 386, 403, 510, and 69 N.H. 33. The court having held, in June, 1880 (Boston etc. R. R. v. State,60 N.H. 87), that the railroad tax could not constitutionally be assessed in accordance with the terms of the existing statute, the legislature at the next session changed the statute to accord with the view of the court. Laws 1881, c. 53. Immediately after the decision was announced, it appearing to be conceded as the result of that case that the railroad tax was a state tax, the board of equalization voted to so assess it; and the court having said that as a state tax the tax "must be proportional with the tax of other property throughout the state," and having recently held in cases before referred to that the saving bank tax was a tax upon property, the board included the deposits and the tax upon them in computing the average tax upon property throughout the state. The tax has been so assessed annually ever since, without objection from any quarter until very recently. If the decision relied upon introduced an exception into the statute, the legislature took no steps to make the written law conform to the judicial decision, and the exception has never been recognized in the execution of the law. Since that decision was announced, numerous tax appeals by railroad, telegraph, and telephone companies have been determined, some of which have been before the court on questions of law and are to be found in the reports, in which abatements were granted, which would have been much less in amount or entirely denied if the law as it is claimed it was decided in 1883 had been relied upon and applied. Boston Maine R. R. v. State, 63 N.H. 571; Western Union Tel. Co. v. State, 64 N.H. 265; Boston etc. R. R. v. State,64 N.H. 490. Counsel for the state have acquiesced in the contrary view, and the attorney-general has officially advised against the plaintiff's contention. Although railroad taxation has been the subject of public discussion, no one claimed the case in question to be an authority against the method followed by the board of equalization, until they called the attention of the legislature to the decision in their report for 1906. It is not to be presumed that all these public officers would have failed to heed the opinion of the court if they had understood such a decision had been made. It seems probable that the court, if they were aware the question had been decided by them, would have called attention to it in some of the subsequent cases, although the question was not directly raised. The only reasonable conclusion from the indisputable facts is that no one connected with the assessment of the tax or the conduct of the tax appeals understood the decision to be what the plaintiff claims; and if these persons did not have that understanding, the only probable inference that can be drawn is that no such decision was in fact made. Examination of the opinion in the light of the questions presented leads to the same conclusion.

The fundamental question is what did the case decide, not what is arguable from the language of the opinion. The language of an opinion, like that of all written documents, must be read in the light of the circumstances under which it is used. "Serious misapprehension of the scope and effect of a judicial opinion is often likely to occur, if the exact point in issue is disregarded." Hedding v. Gallagher, 72 N.H. 377, 391; Richardson v. Mellish, Bing. 229, 252; Quinn v. Leathem, [1901] App. Cas. 495, 506; 26 Am. Eng. Enc. Law 169, 170. In plain terms, to ascertain what a judge meant by what he said it is necessary to know what he was talking about. The report of the case is brief. It is said to be an appeal from the assessment of the plaintiffs' tax of 1880, and that the facts were found by referees; but there is no statement of the facts found and no order for the disposition of the case. It is therefore impossible to determine from the printed volume what facts were before the court, or what effect the court thought the legal principles announced had upon those facts, further than both may be inferred from the language of the opinion, which, so far as it is claimed to relate to the present controversy, is as follows: "By the act of 1878 (G. L., c. 62, s. 1) and the act of 1881 (c. 53), railroads are taxed ``as near as may be in proportion to the taxation of other property' in towns and cities. The savings bank tax (G. L., c. 65, s. 8) is an anomaly, resting on peculiar grounds of public policy, and is universally understood to have acquired the position of an exception to the constitutional rule of equality. It is so regarded in the assessment of state, county, and town taxes upon unincorporated persons, and in their tax appeals; and the plaintiffs' charter is not a statutory or a constitutional ground of exemption." This is all there is by way of statement, argument, illustration, or conclusion. What was in fact decided must depend on the question presented. If the language was used in answer to, or in decision of, the question now raised by the plaintiff, the meaning might be tolerably clear and constitute such a judgment as he contends for. The inquiry, therefore, is whether this or some other question was in the mind of the court at the time.

The referees' report and briefs of counsel are accessible in 148 Briefs and Cases 321, et seq. The files of the court contain the report and the written motion of counsel setting forth the legal questions raised upon the facts found. The report sets out in detail the method adopted by the board of equalization to ascertain the average rate of taxation, including the savings bank deposits. This the board found to be $1.44 on each $100 of valuation; but upon the ground of the undervaluation of other property, they found railroads should be taxed at the rate of $1.25. The referees found the value of the road, reducing the appraisal of the board, and found that property included in the selectmen's inventories was taxed at the rate of $1.52 on the appraisal, but was appraised at only 73.6 per cent of its value. They also found that a tax should have been assessed at the rate of $1.52 upon 73.6 per cent of the valuation found by them. This produced the same result as assessing the tax upon the true value at 73.6 per cent of $1.52, or $1.11872, — the method of the board.

Upon the filing of this report, counsel for the plaintiffs moved for judgment on the report in the following manner: (1) That the tax be wholly abated for the reason that the statute under which it was assessed was unconstitutional; (2) that, failing the sustaining of this contention, the tax be assessed at one per cent of .763 per cent of the actual value of the road as found by the referees, or (3) at one per cent of the actual value. In his printed brief counsel states his position as to the assessment in controversy, as follows: "Can said assessment be sustained by reason of the fact that a smaller tax was imposed upon the deposits in savings banks?" The position was taken, not as an attack upon the findings or rulings of the referees as to what the tax should be, but the attack was upon "the assessment of 1880." The position taken was, that the savings bank tax and the railroad tax, being both state taxes, must be uniform, and no higher tax could be assessed on railroads than upon the deposits. As counsel say in their brief: "When the legislature has only $42,000,000 [the total appraisal of railroads and deposits] of property on which to lay a tax, if they make that tax one per cent on two thirds of the property [the bank deposits] and 1.52 per cent on the remaining one third [the railroads], they undertake to do with respect to the remaining one third what they are prohibited from doing by the constitution of the state." The claim in effect was, that the savings bank tax only could be considered in finding the average rate of taxation upon property throughout the state. Whether the tax upon deposits should be considered in connection with all other property and taxation in the state in determining the average rate of taxation, the court were not asked to decide. The propriety of so including it was apparently conceded, as counsel for the state took the position that such consideration was all the constitution demanded or the plaintiffs could ask. The plaintiffs claimed more, and the denial of their contentions was a decision that constitutional equality did not require that railroads should be taxed at the same rate as savings banks; that in ascertaining the rate it was not necessary to exclude all property and taxes except savings bank deposits and the tax upon them. The substance of what was said was, that as taxes upon other property are assessed at a higher rate than savings bank deposits, the railroads are not wronged if their property is so taxed. How the average rate should be determined, or the validity of the assessment made by the referees, did not arise upon the motions presented to the court, was not discussed, and consequently was not decided. Limiting the decision to the question presented, the subsequent action in reference to railroad taxation, otherwise inexplicable, is readily understood. The record contains no decree of abatement, and reference has been made to a settlement made by the parties with the state treasurer in 1888. From the amount paid on the execution it can be inferred what the parties understood the judgment was, and their understanding may be considered correct. The proposition, however, that from the amount paid and accepted it must be inferred that legal questions not disclosed by the record were presented to and considered by the court, does not require answer. If there had been a judgment of abatement greater than the amount allowed by the referees by the sum which consideration of the tax on deposits would affect the result, there would be evidence that the claim was made and either assented to by the state or decided for the plaintiffs, but a judgment for the amount found by the referees furnishes no evidence that the question was considered by the court or the parties, because the abatement must have been the same if the question was not considered at all, as it would have been if decided adversely to the plaintiffs.

An attempt is made, by assuming that, if the tax upon deposits were considered, the rate upon the valuation found by the referees would be $1.44 instead of $1.52, to show that the consideration of that tax would have materially affected the result, as a foundation for the argument that the question must have been raised and considered. But the referees did not find what the rate or valuation should be, considering only the taxation of the property included in the inventories and the deposits, although both may be computed from the facts found. The rate of $1.44, which the referees say was found by the board of equalization, is the average rate only upon the assumption that the property in the inventories was appraised at its full value, as were the bank deposits. It is apparent that the greater the undervaluation of the inventories, the nearer the tax of that property at $1.52 and of deposits at one per cent approach each other. Property taxed at, $1.52 upon 65.79 per cent of its true value would produce the same tax if taxed at one per cent upon its full value. If the undervaluation found to be 73.6 had been 7.8 per cent greater, the tax of both classes would have been equal. In this case consideration of the tax upon deposits would have reduced the rate upon the true value of the railroad property from $1.11872 to $1.1035, and the rate upon the reduced valuation from $1.52 to $1.50 approximately. The plaintiffs' tax would have been approximately $279.68, exactly $288.61 less. But the valuation to which the plaintiffs were entitled upon their petition for abatement was one at the same ratio to its true value as that of all other property taxed. Amoskeag Mfg. Co. v. Manchester, 70 N.H. 200. The valuation of polls should not be considered in determining the ratio. Amoskeag Mfg. Co. v. Manchester, 70 N.H. 336. The finding of the referees was: "The property included in said inventory, excluding polls and money, was valued for taxation at 70 per cent of its actual value. The entire property in said inventories, including polls and money, was valued for taxation at 73.6 per cent of its actual value." Taking account of the taxation of deposits at a less rate, the referees further found that "the property included in the town inventories, the railroads (exclusive of the B. C. M. [the plaintiffs]), and the savings bank deposits, taken together, were valued for taxation in 1880 at 74 per cent of their actual value." Upon these findings the questions decided in each of the Amoskeag cases, as to the comparison of the valuation of the plaintiffs' property with all other property taxed instead of with like property of individual taxpayers, and the exclusion of the poll taxes from the computation, might have been raised. If judgment was rendered sustaining the tax found by the referees, it does not follow that the court considered these questions and decided each of them adversely to the result reached when they were raised. Why the state did not ask for an assessment upon the basis of all other taxed property; why the plaintiffs did not ask for an assessment including the deposits and excluding other railroad property, or for the exclusion of the poll taxes in determining the rate of property undervaluation; or why, in the settlement of 1888, the state permitted the abatement upon the tax of 1881 to be applied upon the tax of 1880 after the court had expressly decided such application could not be made (64 N.H. 490), so that the whole amount paid in the settlement was less than was due if deduction were made on account of the tax on deposits, is mere matter of speculation. The answers to these questions are immaterial. Any reason for failure to raise the questions would not show that the questions, or any of them, were considered and decided.

The case fails as an authority in the present controversy because it does not appear that any further questions of law as to what the tax should be were ever presented to the court or decided. The case stands precisely like Boston etc. R. R . v. State, an appeal from the tax of 1881, reported on a minor point in 64 N.H. 490 (December, 1887), in which an abatement was granted on the basis of the board rate, as it was found upon the evidence presented, though the mistake of calling it $1.40 instead of $1.46 was made. The abatement was a considerable sum ($2,331.10); while if the rate had been computed excluding the savings bank deposits, no abatement could have been granted, because a tax assessed at that rate on the valuation found by Judge Smith would have exceeded the tax appealed from. This is not a decision against the plaintiff, because the question was not presented or decided. For the same reason, Boston etc. R. R. v. State, 62 N.H. 648, is not a precedent in his favor. The question must be held to be an open one, now for the first time raised. If there were doubt as to whether the question was decided in 1883 as claimed, the subsequent history of the case and the twenty-four years' acquiescence in an opposite interpretation would forbid a decision today upon its authority alone, and would require a re-examination of the question. The only value of the case would be the weight and application of the arguments advanced in the opinion. To such consideration it is entitled under the opposite conclusion.

Relying upon his construction of the decision in 1883 (Boston etc. R. R. v. State, 62 N.H. 648), the plaintiff contends that the re-enactment of the statute is an adoption of the meaning given to it by the court. If it were to be conceded for the purpose of the argument that the plaintiff's interpretation of the decision is correct, the rule invoked would have no weight in the present inquiry. Technically, it does not apply because the tax involved in that case was assessed under the act of 1878 (as construed in Boston, etc. R. R. v. State, 60 N.H. 87), which was repealed in 1881. The decision did not and could not constitute an adjudication of the meaning of the act of 1881, passed a year later. The only reason which sustains the rule is the inference that the legislature, knowing the meaning attached to the language by the court, would have changed the language if a different purpose were intended. From the knowledge of the legislature, actual or presumed, the rule derives its sole force. The entire ignorance of every one connected with tax administration of the rule claimed to have been established in 1883 has already been referred to. It cannot fairly be inferred that the legislature in 1891 had knowledge not possessed by the state assessors, counsel for the state, or members of the court. It has been said by the federal supreme court, "that when the meaning of a statute is doubtful, great weight should be given to the construction placed upon it by the department charged with its execution. . . . And . . . that the re-enactment by congress, without change, of a statute which had previously received long continued executive construction, is an adoption by congress of such construction." United States v. Hermanos, 28 Sup. Ct. Rep. 532; Robertson v. Downing,127 U.S. 607; United States v. Healey, 160 U.S. 136; United States v. Falk, 204 U.S. 143, 152. This statute has received but one construction from the officers of the state charged with its execution, since in effect it was formulated by the court in 1880 and enacted by the legislature in 1881.

The interpretation put upon the statute by the board of equalization is therefore supported by the fact that, so assessed, the burden placed upon railroad property is its constitutional and equal share compared with that placed upon all other property in the state; by the language of the court in Boston etc. R. R. v. State, 60 N.H. 87, practically enacted into the statute; by the decision in Boston Maine R. R. v. State, 63 N.H. 571, that railroads cannot be lawfully compelled to pay more; by the plain terms of the statute, defined by repeated decisions of the court, subsequently re-enacted without change; by the uniform practice for twenty-seven years; by the re-enactment of the statute in the light of such practice; and by the use of similar language by the legislature of 1907, when the question was matter of public discussion and had been fully presented to the legislature by the board in their report for 1906, with the suggestion that the matter of a change in method was a subject for legislative action. The meaning of the words "at a rate as nearly equal as may be to the average rate of taxation . . . upon other property throughout the state," in chapters 81 and 91, Laws 1907, cannot be questioned under these circumstances; and it is equally plain it was intended that the taxes thereby provided for upon express companies, sleeping, dining, and parlor cars should be determined as railroad taxes had been, and that both should be taxed the same. It is unnecessary to refer to the failure of the legislature to change the law when the subject was before them in 1907. The only evidence upon the other side is the action of the court from 1865 to 1878, which was repudiated and disapproved when it was before urged as authority, and the reasoning of the opinion in Boston etc. R. R. v. State,62 N.H. 648.

If the savings bank tax is an anomaly to the extent that other property holders may not claim that their property cannot be taxed at a different rate, the effect of the anomaly cannot be extended beyond the acquiescence which created it. As there has been no acquiescence in the exclusion of the bank taxes in ascertaining the average rate of taxation throughout the state for the purpose of imposing a uniform tax upon railroads, but the reverse, there is no ground for the contention that such an exception to the constitutional rule of equality has been created by universal understanding. If the assessments, from 1865 to 1880, of a municipal tax upon railroads, without objection, amended the constitution in this regard, the amendment, if it could apply to a tax assessed as a state tax, has been repealed by the contrary action for twenty-seven years. The reason why the discrimination, if one exists, is not regarded in the taxation of unincorporated persons and in their tax appeals, if it cannot be, may be determined when such question arises. The fact that no unincorporated person has raised the question, and that it has not been decided, is not conclusive against the incorporated person who first raises it.

Reliance is also placed upon some expressions culled from opinions of Chief Justice Doe in tax cases. In State v. Express Co., 60 N.H. 219, he said: "There can be no proportion or equality between that which is fixed and that which is uncertain and fluctuating." The truth of the quotation relied upon is as self-evident as a preliminary axiom in Euclid. Things that are not equal are unequal. The axiom was relied upon by Judge Doe to sustain the unconstitutionality of the fixed tax upon railroad expressmen, which was in issue in that case. Its only bearing in this case is to cast doubt upon the constitutionality of the savings bank tax, which is not now in issue. There would be no difficulty in mathematics or logic in assessing a tax upon railroads in proportion to the tax upon savings banks. So long as that tax only were considered, the two taxes would be the same. But it has not been claimed since 1883 (62 N.H. 648) that railroads were entitled to have only the savings bank rate considered in fixing the rate at which they should be taxed. The railroad tax rate ($1.72) is not equal or proportional to the savings bank rate, because it is not the same; neither is it equal or proportional to the rate of $2.50 in Concord, or the average rate of $1.52 paid in nearly half the towns upon property other than savings bank deposits, for the simple reason that it is not the same but a different rate. Neither the constitution, nor the statute, nor the dictates of natural justice require that the railroad rate should be equal to each of the 238 or more different rates by which property is taxed throughout the state. It is impossible that it should be unless all rates are alike. The only equality possible is to the average, not of the rates, but to the average rate at which all property is taxed. If there is some property upon which the rate of taxation is changed only by legislative action and at long intervals, that fact does not prevent the taxation of such property entering into the computation of the average rate. The rates do not enter into the computation at all. The total amount levied in taxes, divided by the total property taxed, gives the average rate. Every man's taxes, if assessed by this rule, are proportional and equal. So the rate is determined by every board of assessors in the state. There is no other way. Under it the railroad taxes, so far as the rate goes, are not only proportional, but equal to the taxes on other property.

Aside from the effect of judicial decisions, constitutional interpretation, or the construction of statutory expressions of legislative purpose, the fundamental question involved in the discussion as to the proper method of assessing railroad property is whether the method employed imposes thereon its fair share of the public burden. Whether it does or not is evidence of the legislative purpose. Because individuals on the whole pay more on their property taxed by the local assessors, the impression has arisen that railroads were favored as to the rate; but as the lower average rate is produced by the fact that on between one fourth and one fifth of their whole property individuals embracing nearly one half of the population of the state pay a lower rate, there is no injustice, but mathematical accuracy, in imposing the average rate upon railroads, who are not depositors in savings banks, and whose money, if deposited therein, would not under existing legislation be exempt from taxation by the board of equalization. P. S., c. 64, s. 12; New England Tel. Tel. Co. v. Manchester, 72 N.H. 166; Carter v. Whitcomb, ante, 482.

It is in substance conceded in argument for the plaintiff, that the method followed is mathematically correct and just. Constitutional equality which is not also mathematically equal to a reasonable approximation is inconceivable. Taxes upon property, equal and proportional as a mathematical proposition, are constitutionally just. The substance of the entire argument in support of the plaintiff's claim is that a tax on savings bank deposits is not a property tax. If this proposition be conceded, the conclusions urged may properly follow; but until some ground is suggested for holding that when the language under discussion was used the tax on deposits was understood to be an excise and not a property tax, the argument fails. There has been no argument or claim in the entire discussion that this tax has been at any time since the decision in Bartlett v. Carter, 59 N.H. 105, or is now, generally understood to be an excise instead of a property tax. The inclusion of the tax on deposits in finding the average rate is the course directed by the legislature, and is not open to constitutional objection.

The constitutional question in this case and in Boston etc. R. R. v. State, 62 N.H. 648, was involved and decided in the two cases, Amoskeag Mfg. Co. v. Manchester, reported 70 N.H. 200, 336. In those cases the plaintiffs claimed that because certain property owners, by a low appraisal of their property, had the benefit of an exceptionally low rate, their like property must be appraised — in effect, taxed — at the same low rate, precisely as the railroad claimed in62 N.H. 648 that their property should be taxed at the same rate as savings bank deposits. But it was held that the extent of the plaintiffs' right was to an appraisal of their property at the average rate of all the other property, that is, to have their tax assessed at the average rate. If the savings bank tax is not a property tax, under the law of these cases it should not be considered, if it is, it should be. On this question these cases throw no light. They do not hold, but deny, that A's right is to be taxed only the same amount as B on a particular class of property. Upon the contention that on particular classes of their property individuals are taxed more than railroads on like property rests the whole claim of inequality so vigorously advanced. That claim was held to be unsound in the Amoskeag cases, and no doubt is suggested as to the validity of the conclusions then reached.

The equality of the constitution is a practical one. Strictly, it may be doubtful whether railroad property not located or owned in a local taxing district can be assessed for the local purposes of such district. The difficulties of attempting to distribute the property of a railroad among all the towns in which it may be situate or owned, and to tax these separate parcels according to the varying rates, — that is, of assessing the tax as a tax of a triple character, — would be insurmountable. The statute as it has been worked out by judicial decision and executive application, in view of the utter impossibility of any other course, places these public service corporations in a class by themselves, and does substantial justice by requiring them to pay the same rate of tax as is paid by all other property not in that class. Whether the legislature could properly devise some other method need not be considered. The method is just and equitable as between railroad and all other property, and does not violate any rule requiring proportional assessments. Even if the court agreed that some other method would be more economically sound, more productive of revenue, or technically more clearly within constitutional limits, the court has no power to improve the statute by adding to or taking therefrom. So long as the legislature directs, as they plainly have, the inclusion of the savings bank taxes in finding the average rate, the court has no power to order their exclusion.

The question so far as it relates to the taxation of insurance capital has not been considered, because the result in this case would not be affected by any conclusion that might be reached. Upon the facts alleged, the writ of certiorari could not be maintained if the claim as to this tax should be held well founded. The court are no more at liberty to advise the board of equalization at the plaintiff's request, than at their own. Bingham v. Jewett, 66 N.H. 382, 384; In re School-Law Manual, 63 N.H. 574, 576; Opinion of the Justices, 62 N.H. 704, 706. It may not, however, be improper to remark that many considerations which require the inclusion of the savings bank tax do not apply to this tax. If it should in the future become material and there should be controversy as to it, the question can easily be presented.

Demurrer sustained.

WALKER and YOUNG, JJ., concurred.