Aberdeen Savings Loan Ass'n v. Chase

While I agree with the conclusion reached by Judge Holcomb in his dissenting opinion, I wish to notice with more particularity some of the questions he has noticed but generally.

The majority, it will be observed from the concluding part of their opinion, rest their conclusion that the act in controversy is in contravention of the Federal constitution, because it denies to the complainants the equal protection of the laws, and is in contravention of the Federal laws because it taxes tax-exempt securities. To reach these conclusions, the majority hold, and must necessarily hold, that the act is not what upon its face it purports to be, and is not what the law-making power enacting it intended and declared it to be. They hold, to state the holding more particularly, that, notwithstanding the act is in form and declaration a tax on the right of the corporation affected by it to do business within the state — that is, a tax upon their franchises — it is, in substance and effect, not such a tax, but is a tax upon their properties.

The process of reasoning by which this conclusion is reached I must confess I have difficulty in understanding. In so far as the franchise of a corporation is property, it is, of course, a tax upon property, and in as much as the tax is levied in lieu of all other taxes, it can be said to be a substitute form of a property tax. But to say that it is not a franchise tax, nor a substitute for a property tax, but is a direct tax upon property, is, in my opinion, neither a correct interpretation of the meaning of the act, nor in accord with the actual fact. I can thus see no reason for calling the tax something else than it really is, and measuring its constitutionality by a rule applicable to that something else. In my opinion, it should be treated as a franchise tax and its constitutionality measured by that consideration.

Considering the tax as a tax on franchises and as a substitute for other taxes, I can see no constitutional objection to it. I am aware that the majority intimate that such a tax cannot be laid in this state. But if this be their meaning, it is contrary to both principle and authority. Corporations in this state are organized under general laws. By their organization, the state enters into no contract obligation with them. By § 1, Art. XII, of the state constitution, corporations may not be created by special laws, they must be organized under general laws, and it is therein specially provided that "all laws relating to corporations may be altered, amended, or repealed by the legislature at any time." Because of this provision, corporations have no contractual immunity from the imposition by the legislature of additional burdens subsequent to their organizations; the legislature may not only impose upon them such additional burdens at its pleasure, but it may absolutely destroy them.

For authority we need not go beyond our own decisions. That franchises of corporations is a species of property that can be taxed was expressly held by this court in the following cases:Commercial Electric Light Power Co. v. Judson, 21 Wn. 49,56 P. 829, 57 L.R.A. 78; Edison Electric Illuminating Co. v.Spokane Co., 22 Wn. 168, 60 P. 132; Lewiston Water PowerCo. v. Asotin County, 24 Wn. 371, 64 P. 544. In the first two of these cases, the question was directly presented. The trial court had held that franchises of corporations were not taxable, and in each instance we overruled its holding. In so far as my examination has gone, no court of any other jurisdiction has held to the contrary. There are cases which hold, because of constitutional restrictions, or because of contract, franchises of corporations are not taxable. But these cases rest on special grounds not present here. They do not deny the power as a power.

I am aware that it is said in the majority opinion in this connection that "we must, nevertheless, note that this act operates only when the corporate privilege to do business is exercised." I take this to mean that the majority are doubtful whether the legislature can make a distinction, when taxing franchises of corporations, between active and inactive corporations. But I see no objection to the act because of this reason. Certainly, the complaining corporations cannot object to paying a tax unless other corporations similarly situated pay no tax, and this act does not provide, nor is there any other act which provides, that inactive corporations shall be exempt from taxation.

Nor is the tax objectionable, in any constitutional sense, because it is an indirect and not a direct tax on property. These corporations deal in, and practically all of their wealth consists of, intangible property, a form of property that is difficult to reach by direct taxation. To tax their franchises and measure the tax on the income derived from these securities, certainly cannot be objectionable if the corporations, in the end, pay no greater tax than they would be required to pay were the tax direct upon their properties, and concerning this there is no contention.

In the briefs of the several appellants, there are extended arguments directed to the contention that the act in question is violative of the state constitution. But as the majority do not notice these arguments, I shall not do so further than to say that my study of them has led me to the conclusion that the contention is unfounded. Viewed as a tax on the franchises of corporations, I can, therefore, see no reason why the act is not a valid exercise of legislative power.

But viewing the act as a tax on property, and not a tax on franchises, I think the majority are wrong in their conclusion. The first of the reasons assigned for the conclusion is that it denies to the appellants the equal protection of the laws. I have found some difficulty in gathering the reasons assigned for this conclusion. The majority first assert that, since the cause is here upon a demurrer to the complaint, we must take the facts alleged in the complaint as true. This is followed by statements of the purport of these allegations, and, taking these statements as a correct interpretation of the act, the conclusion is drawn that the act is discriminatory as between the corporations affected by it.

That there might be something wrong with this line of reasoning ought, it would seem, to be apparent. In the first place, it is not accurate to say that a demurrer admits the allegations of a complaint in their entirety. The correct rule is that it admits only the allegations that are well pleaded. In the second place, the deductions from the act drawn by the pleader must be measured by the terms of the act itself, and if these deductions are not in accord with the proper conclusions to be drawn from the act, they are not well pleaded. The act is partially quoted in the majority opinion, sufficiently full to illustrate the questions involved. Only a casual reading of them, it seems to me, shows that there is no discrimination between the corporations affected by it. Each is taxed on a per centum of its net income and in proportion to the amount of its net income. This is not to discriminate between the corporations, unless it is to be said that taxes upon corporations cannot be lawfully measured by net income; unless it is to be said that a corporation whose wealth is measured in millions of dollars cannot be required to pay more taxes, when the tax is on the franchise, than can a corporation whose wealth is measured by hundreds of dollars. I am not as yet prepared to subscribe to this doctrine. I cannot conceive that to tax a corporation on its franchise and to measure the tax by its income is, in any just sense, discrimination.

The majority also cite from the complaint the allegation to the effect that banks, under the act, will pay a tax at the rate of $0.57 per thousand dollars of resources, whereas the other corporations affected will pay at the rate of $2.46 per thousand dollars of resources, and seem to take the allegation as true. But here again the pleader is only drawing his conclusions from the act. The act itself makes no such discrimination. It taxes all at the same rate, and if this results in the conclusion reached, it is due to the cause that banks do not earn the same income on their resources that the other corporations earn. This could easily be true. Banks are subjected to many limitations and burdens to which the other corporations are not subjected, and it may be that, because of these, they will not be required to pay as great a tax, measured by resources, as the other corporations will be required to pay. But, if it is proper to measure taxes on property by the amount of the income derived from the property, it is not unlawful discrimination even if the result predicted does follow.

Other reasons assigned by the majority for holding that the tax denies to the appellants the equal protection of the laws are stated by them in the following words:

"The tax here sought to be levied is, as was stated by the supreme court of the United States in the case of Quaker CityCab Co. v. Pennsylvania, as above quoted, `one that can be laid upon receipts belonging to a natural person quite as conveniently as upon those of a corporation. It is not peculiarly applicable to corporations as are taxes on their capital stock or franchises. It is not taken in lieu of any other tax or used as a measure of one intended to fall elsewhere. It is laid upon and is to be considered and tested as a tax on gross receipts; it is specifically that and nothing else.'"

It may be that I do not understand just what the majority mean by the quoted excerpt, but they seem here to take an entirely different view of the nature of the tax than they have elsewhere taken in their opinion. They seem to assume that it is a tax on the gross receipts of the corporations, and is to be considered and tested as a tax on gross receipts, and seem to assume that the tax authorized by the act is not taken in lieu of any other tax or used as a measure of one intended to fall elsewhere. I cannot draw these conclusions from the language of the act. That the tax is not a tax on gross receipts, either in form or substance, is made clear by the act itself. In form the act is a tax on the franchises of the corporations, the amount of the tax to be measured by a percentage of their net receipts. Plainly, unless words have lost their meaning, this is not a tax on gross receipts.

Again, in the first sentence of the quotation it is said that the tax is "one that can be laid upon receipts belonging to a natural person quite as conveniently as upon those of corporations." I take it that the majority mean that, because the tax is not laid upon natural persons, but only upon the corporations described, the act is void. But with this I cannot agree. It is to deny to the legislature the power to classify persons and property for the purposes of taxation, yet this is a power not denied by the state or Federal constitution, and a power that has been exercised by the legislature since the beginning of statehood. And that it may so classify, has been held many times by this court. It was so held in Ridpath v.Spokane Co., 23 Wn. 436, 63 P. 261; Tekoa v. Reilly,47 Wn. 202, 91 P. 769, 13 L.R.A. (N.S.) 901; Puget Sound P. L. Co. v. Seattle, 117 Wn. 351, 201 P. 449, and in MacLarenv. Ferry County, 135 Wn. 517, 238 P. 579. The limitation is that uniformity and equality must exist in the classes, and the tax imposed upon the property of the one class must not be at a higher rate than is imposed upon the property of another. But classification in itself is not objectionable. Oftentimes, it is the only method by which equality in taxation can be maintained.

The statement that the tax here levied is not taken in lieu of other taxes is likewise without foundation. A study of the act, together with a study of the other taxing laws of the state, will show that this tax is taken in lieu of all other taxes on the property of the corporations affected by it; that it is a tax intended to reach intangible property; a species of property on which neither corporations nor natural persons have for many years paid taxes. It is not, therefore, an additional tax on property assessed and collected under other statutes; it is a tax on property which otherwise would and has heretofore escaped taxation.

The case relied upon by the majority to sustain their position is Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389. Simply stated, that case was this: Certain corporations, one of which was foreign to the state of Pennsylvania, were engaged in the taxicab business in the city of Philadelphia. There were a number of individuals and partnerships engaged in the same business. The legislature enacted a law authorizing a tax on the gross receipts of the corporations engaged in the business, but did not make a like exaction from the individuals and partnerships engaged therein. At the suit of the foreign corporation, the court held the tax illegal because it did not make the natural as well as the artificial persons subject to the tax, and thus violated the equal protection clause of the Federal constitution.

Conceding the soundness of that decision (it was questioned by three of the distinguished members of that court in arguments that are at least appealing), I cannot conceive that it has application to the question here presented. Here, the corporations complaining do not pay taxes on their property as individual persons pay taxes and in addition pay this tax. As I have pointed out, they pay in this manner in lieu of all other taxes, and if they do not pay this tax they pay no taxes at all. Manifestly, there is here no discrimination such as is pointed out in the cited decision. The corporations here affected pay only one tax levied in a different manner than other taxes are levied.

The corporations affected by the act are the financial institutions of the state. There are numerous other corporations engaged in other pursuits, such as trade, manufacture, and the like, who are not taxed upon their net income, and, seemingly, it is inferred that, because of this difference, the present act is invalid. But if classification for the purpose of taxation is permissible, as I have attempted to show, this act is not invalid for this reason. The other corporations are not permitted to escape taxation. Their property is taxed under other laws and by different means of measuring value, and there is nothing in this record, and nothing elsewhere of which I am aware, that shows that they do not pay a tax commensurate with their wealth, or shows that they will not hereafter bear their just proportion of the burdens of the state. After all, this is the just criterion. The object and purpose of all tax laws is to distribute the burden of maintaining the state equally upon all property, and when this is done, the manner and means by which it is done matter little.

Again, it is said that there are natural persons engaged in the business in which the corporations are engaged who are not taxed upon their net incomes. But this is not quite accurate. By positive law, the business of conducting a bank, a building and loan association, a savings bank, a mutual savings bank, and like institutions, is expressly limited to corporations. A natural person can, of course, loan his own money, or the money of others intrusted to him for that purpose, and he may buy stocks and bonds and other moneyed securities for himself and for others, but when he acts for others, he must act under private contract. He cannot, as the corporations affected by the act may do, open up a place of business for the receipt of deposits from the general public and treat the deposits when so received as his own with nothing but a general liability for its return. Stated in another way, the corporations affected by the act have special privileges not accorded to a natural person, and to my mind it is idle to say that they cannot be differentiated for the purposes of taxation.

The second reason given for holding the act invalid is that it authorizes a tax on tax-exempt securities. This conclusion is drawn from the fact that the statute under which the corporations affected are organized permits them to invest their funds in tax-exempt securities, and that some of them, if not all, have a part of their funds so invested, and from the further fact that the tax is measured by net income, without any deduction of that part of it which may be derived from tax-exempt securities. Taking the majority view of the effect of the act, this objection is perhaps pertinent, but I am unable to conceive how it avoids the entire act. At most, only a part of the tax is void for this reason, and I see no reason why the invalid part may not be segregated from the valid part and the tax be allowed to stand for the part that is valid. The courts hold acts of the legislature, which are invalid in part, wholly invalid only when the invalid part is inseparable from the valid part, or when it is impossible to say whether the legislature intended the act to operate as a whole or not operate at all. The act here in question of itself relieves us from this latter consideration. By § 38 of the act (see Laws of 1929, p. 397, chap. 151) it is provided that:

"If any section or provision or part of this act shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the act as a whole or any section, provision or part thereof not adjudged invalid or unconstitutional."

This leaves for consideration only the question whether the invalid provision of the act is separable from the valid provision. I can see no difficulties on this score. It being a tax on property, a part of which is taxable and a part not taxable, manifestly there is no substantial reason why the invalid part may not be segregated from the valid part and the tax be allowed to stand on the part on which the tax is valid. Nor are there any insuperable administrative difficulties that stand in the way. By the very process the statute prescribes for ascertaining the net income, the amount of income derived from tax-exempt securities can be segregated and rejected.

But the majority cite the case of Macallen Co. v.Massachusetts, 279 U.S. 620, as authority for holding the entire tax void because it is void in part. I cannot so read the case. The facts there involved are much the same as those involved here; that is, it was a tax levied on property in which the amount of the tax was measured by net income derived from both taxable securities and tax-exempt securities. The corporation against which the tax was levied paid the tax under protest, and, to use the language of the court,

". . . brought a petition for abatement of the tax under provisions of the state law, setting forth the foregoing facts and alleging the unconstitutionality, under the Federal constitution, of the statute in so far as it was held to includeinterest derived from the tax-exempt securities." (Emphasis mine.)

The court sustained the petitioner in its contention, but, plainly, in so doing, it did not declare the entire act void. Indeed, so far from so declaring, the question was not even before the court.

The majority also cite the last mentioned case as impelling the holding that the tax here in question is a tax on property, and not a tax on franchises. I think this conclusion unfounded. As I read the case, the court held the statute there in question to be a tax on property, and not a tax on franchises, as it purported to be, because of the peculiar circumstances surrounding its enactment, and was not intending to lay down the general rule that a tax on franchises was a tax on property in every instance where the amount of the tax was measured by net income derived in part from tax-exempt securities. I am led to this belief by the fact that the court had held in a number of cases, extending back for a period of more than seventy years, directly to the contrary. These cases are not expressly overruled by the court, and it is impossible to believe that they intended to overrule them sub silentio. Moreover, the cases cited by the court as sustaining its position are inapposite to this conclusion. They are cases in which the tax was directly levied on non-taxable property, not cases where the non-taxable property was used merely as a measure of the tax.

The decision of the majority has far-reaching consequences. It affects materially the revenues of the state, and I fear it has more serious consequences. The corporations affected by the act own and control a vast part of the taxable wealth of the state, and if their property is to be held as exempt from taxation, I know of no reason why owners of other property may not complain that our entire system of taxation is void. This because it violates the state constitution. That instrument (Art. VII, § 1) provides that:

"All property in the state . . . shall be taxed in proportion to its value, to be ascertained as provided by law."

It also provides (Id. § 2) that the legislature shall provide by law a uniform and equal rate of taxation, "so that every person and corporation shall pay a tax in proportion to the value of his, her or its property," and it requires no emphasis to make clear that to tax only a part of the property of the state is to violate these provisions of the constitution, and no emphasis to make clear that tax laws which tax the property of one person and exempt the property of another equally liable to taxation are discriminatory and void.

The judgment of the trial court should be affirmed.

HOLCOMB, J., concurs with FULLERTON, J.

MILLARD, J., concurs with FULLERTON and HOLCOMB, JJ.