Lancaster County v. McDonald

Sedgwick, J. The principal question in this case involves the construe-of the word “credits,” as used in the revenue law (ch. 77, Compiled Statutes, 1903; Ann. St. 10400-10896). In listing his personal property for assessment in 1904, the defendant in error included an item designated by him as “bills receivable,” amounting to $13,541.82, and an item of $32,904.85, represented by notes and real estate mortgages. He claimed the right to offset and deduct from these items debts owing by him. The assessor refused to allow this claim. Objections to this assessment were duly filed with the county board of equalization and were overruled, the board refusing to allow the indebtedness to be deducted from these items. Upon appeal to the district court this action of the board of equalization was reversed, and these proceedings bring this decision of the district court here for reviere. In State v. Fleming, 70 Neb. 523, 529, this court said: “In making a return of his taxable property under the provisions of chapter 73 of the laws of 1903 the taxpayer may deduct from the credits due him all just debts by bim owing at the time of such return.” 1. In the first attack upon this proposition, it is contended that as this language is used in the syllabus prepared by one of the commissioners, and is fortified by reasons given in his opinion only, it is not entitled to the same consideration as are decisions of the court. There were two opinions in that case; one by the chief justice and the other by Mr. Commissioner Duffie, and it is suggested that there is language in the opinion of the court itself which indicates that the opinion of the commissioner did not in all respects have the sanction of the court. The opinions prepared by the commissioners and published officially are in all respects to be regarded as the opinions of the court. Both opinions expressed the judgment of the court, and it is immaterial whether a commissioner or one of the judges formulated the opinion of the court. — 455 — 2. It is next urged, that the matter determined in the paragraph of the syllabus above quoted was not necessary to a determination of the case and is therefore to be regarded as dictum only. It appears from the opinion that it was contended in that case that the whole of the revenue act of 1903 was invalid because many of its provisions, which it was contended were of such importance that they should be regarded as inducements to the act, were in conflict with the constitution; and in that connection it was contended that the meaning of the act is that the gross credits of the taxpayer should be assessed for taxation, and that no reductions should be made on account of his indebtedness. This it was urged was so great an injustice as to be impossible of execution. It was in answer to this argument that the opinion undertook to show that by the term “credits,” as used in the statute, was meant net credits; and probably in this view the discussion was justified and the conclusion reached not entirely dictum. 3. It is insisted that the conclusion upon this point announced in the opinion referred to is unsound; that it does not announce a proper construction of the statute, and should therefore not be adhered to. The plaintiff in error contends for what is said to be a literal construction of the statute. The words, it is said, are to be given their plain and ordinary meaning, and that the statute prescribes that credits must be listed for taxation, and defines the word “credits” to include “every demand for money, labor or other valuable thing, whether due or to become due.” This construction of the statute was considered in the opinion above referred to, and the result of such a construction was made plain by a quotation from Florer v. Sheridan, 137 Ind. 28, 36 N. E. 365, 23 L. R. A. 278, as follows: “Consider for a moment its practical operation under such a construction. A has an account against B for $1,000, or a debt against him for a like amount, evidenced by a promissory note. B holds an account or promissory note, evidencing a bona fide indebtedness against A for the — 456 — same sum of money. Equity, except where one of the parties is insolvent, treats these claims as compensating each other. Neither OAves nor could recover, in an action, against the other, and yet, if appellant’s theory is right, $2,000 must be placed upon the tax duplicate, because the holders never met and settled or surrendered their claims. In such case, each is a chose in action held by the party to AAdiom it belongs, and must, under the contention of counsel, be returned to the assessor, and yet it is olmous that neither, as against the other, has a penny of credit, either in money or just value. If the owner is taxed upon such credit it is upon fiction. The tax duplicate in this way Avould be increased, but not from property of value in the state.” The court concluded: “Credits are, by the constitution, property, and as such are to be taxed. Their just value is to be ascertained by subtracting the bon,a fide indebtedness from the gross amount of the notes, accounts and other 'choses in action, and the balance is to be returned as belonging to the individual. Surely, the difference thus found is the precise amount and just value of the credits of the party in the legal and proper sense of the term. Section 1, article 10, of the constitution does not say the gross amount of all notes, accounts and other choses in action shall be taxed, and we cannot so construe it without perArerting its language and obvious meaning.” It will not be contended that the proper construction of our statute would require that, in the case supposed in the above quotation, A and B would both be taxed upon the $1,000 claim which each Avas supposed to have held against the other. It follows that the literal construction contended for cannot be given the statute, and we must look to the whole enactment of the legislature, and determine by a consideration and comparison of all its provisions AAdiat Avas intended by the legislature to be taxed in the provision requiring credits to be listed. The 5th section of the act defines the word “credit”: “The Avord 'credit’ includes every demand for money, labor or other valuable thing, whether due or to become due.” • — 457 — Section 3 defines property: “The word ‘property’ includes every kind of property, tangible or intangible, subject to ownership.” The statute as well as the constitution requires that all property shall be taxed. The word “property” as above defined includes also credits, and these and other general definitions given by the statute are to be taken in connection with, and are controlled by, the meaning plainly intended to be given to these terms in special provisions which we are called upon to construe. Section 28 provides for the listing of property for assesment: “All his moneys, credits, bonds, or stocks, shares of stock of joint stock or other companies, when the capital stock of such company is not assessed in this state, moneys loaned or invested, annuities, franchises, royalties, and all other personal property.” Moneys loaned or invested and bonds and stocks are specified, but they are clearly forms of credit and there must be some reason for specifying them in this provision. If by the term “credits” in this schedule the legislature intended the thing defined as “credit” in section 5 — “Every demand for money, labor or other valuable thing, whether due or to become due” — and it was intended that gross credits should be taxed, it Avould certainly have been wholly unnecessary to have included also “moneys loaned or invested.” If Ave consider that the legislature intended to classify credits, then the purpose of this provision in regard to the schedule becomes apparent. It is suggested in the opinion referred to that merchants might be largely indebted for the stock carried by them, and at the same time have credits due them from customers for amounts approximately the value of their stock. Goods bought upon credit might also be sold upon credit, and the amount of such credit held by the merchants might largely exceed the moneyed capital of his business. It seems reasonable that the legislature should have intended to allow such credits and debts to offset each other, and at the same time to require that money which was loaned or invested as a speculation should be taxed without the right of deducting the general indebtedness of the taxpayer. — 458 — The constitution of 1851 of Ohio provided that “laws shall be passed taxing by a uniform rule all moneys, credits,” etc. This was a positive requirement that all credits should be taxed, and the supreme court of that state construed that language of the constitution to mean that debts could not be deducted from moneys and credits, and that a statute attempting to allow such deduction was therefore void. One of the judges dissented from this proposition and maintained that credits should be ascertained by deducting liabilities from claims and demands. Exchange Bank v. Hines, 3 Ohio St. 1. In Latimer, Colburn & Lupton v. Morgan, 6 Ohio St. 279, that court adhered to its conclusion that “credits” in the .constitution meant gross credits, and that liabilities could not be deducted therefrom. Soon afterwards the legislature by statute declared that the term “credit” meant “the excess of the sum of all legal claims and demands * * * -over and above the sum of the legal bona -fide debts owing by such person.” It is said by that court in Hubbard v. Brush, 61 Ohio St. 252, 55 N. E. 829, that this legislative definition of the word “credit” has been acquiesced in for more than forty years, “and Exchange Bank v. Hines, in as far as it denied the right to deduct liabilities from claims and demands, has been ignored”; and, after stating that the determination of the case depended upon the meaning of the word “credits” as it appears in the constitution, and that the power to determine that meaning devolved upon the court and not upon the legislature, the court said: “The word 'credits’ in the connection in Avhich it is used in the constitution is not made at all clear by a resort to the lexicographers. It is apparent, hoAvever, that if the framers of the constitution had intended to specifically tax book accounts, promissory notes and the like, it would have only required the addition of a few words, not at all incompatible Avith the brevity required in such instruments, to manifest that intention. The ease with which it could have been done gives to the omission a signification entitled to some consideration. The administration of the — 459 — laws governing taxation has developed the difficulties, if not the impracticability, of permitting the subtraction of debts and liabilities of the owner of real estate and tangible personal property from its value for taxation. Though even here there are those avIio contend that the deduction should be made. The difficulties, hoAvever, attending a deduction of liabilities from claims and demands have not proved formidable, since the practice Avas authorized by the legislature, and the practice itself has received general approbation. For these considerations, not to specify others, Ave are of opinion that the legislative declaration is in accord with the constitution, and therefore hold that the corporation involved in this controversy rightfully, in listing its property for taxation, deducted its liabilities from its claims and demands.” In that case, and in many others, the word “credits” in statutes and constitutional provisions requiring “credits” to be taxed is held to mean net credits. We think the reasoning in State v. Fleming, supra, upon this point is sound, and is supported by the authorities there cited. The conclusion is that the legislature intended that moneys loaned or invested shall be taxed without deductions on account of indebtedness, and the “credits” that are to be taxed are the true credits. The taxable credits of an individual or business is the amount that can be realized upon an adjustment of accounts. To determine the real credits of a business, account must be taken of its liabilities. The statute names items that are ordinarily considered as credits; that are not to be so considered for the purpose of ascertaining the taxable credits. All other items of property required to be listed are distinguished from credits for the purpose of taxation, and are to be listed at their true value Avithout deductions for indebtedness. 4. Were the items in question credits Avithin the meaning of section 28, or were they bonds or money loaned or invested and so not subject to reduction on account of in — 460 — debtedness? In the district court the cause was determined upon a demurrer to the petition. The holding was that this petition stated sufficient facts to entitle the appellant there to have his assessment changed by deducting the amounts of his debts from the credits listed by him. The allegation of the petition is that these credits consist of notes and mortgages of the value of $56,385.05. There is a schedule of these notes and mortgages attached, but there is no allegation and nothing to show the origin and character of these notes and mortgages. If they represented moneys loaned or invested, within the meaning of section 28, they are not credits within the meaning of that section, and being specifically named for taxation, they are not subject to reduction on account of general indebtedness. The allegation of the petition which, after stating the indebtedness to be deducted, is in these words: “So that the true and actual value of the credits of all kinds belonging to the appellant and subject to taxation was nothing” — is the statement of a conclusion only, and is not confessed by the demurrer, which admits only those matters of fact which are traversable and are well pleaded. The question Avhether a loan broker, who has both credits and debits arising from the ordinary transaction of his business, might offset such debits against the credits, to find the true value of his credits, is not raised by the petition. The demurrer to the petition should have been sustained. The judgment of the district court is therefore reversed and the cause remanded for further proceedings. Reversed.