Appeal Tax Court v. Patterson

Bowie, J., delivered the opinion of the Court. The principal question raised by the records in the class of appeals now before us is, whether the public debt of one state, owned by a citizen, or resident of another, is taxable by the State, in which the owner resides. The — 366 — importance of the question in a financial point of view, to the State, and its residents, can scarcely he magnified. Although the counsel for the parties interested have exhibited the greatest industry and research, in presenting every case that could throw light on the subject, it appears the question is yet “res integra." Analogous cases, hut none directly in point, have been cited. In some the question has been adverted to, hut avoided as not raised by the record. There seems to have been a manifest reluctance to anticipate a question so difficult of solution. The power of taxation (it is said) is limited only by its necessities, or such constitutional hounds as are imposed by the compact of government. It is conceded on all hands to he a legislative power, with the wisdom or policy of which the judicial authority has nothing to do. It operates upon all tangible property, real or personal, found within the territory in which the owner resides, and all intangible property, which follows the person of the owner. The inquiry in the present instance is, how far it may he exercised upon stocks, bonds, or other certificates of public debt, issued by other sovereign States (or municipalities created by them,) which are exempted by the States issuing them, and owned by citizens of this State. The most recent text writers, announcing the result of the latest decisions on this subject, declare “that protection of the government, being the consideration for which taxes are demanded, all parties who receive, or are entitled to that protection, may he called upon to render the equivalent. The protection may he either to the rights of person, or to the rights in property, and taxes may consequently be imposed when either person or property that is within the jurisdiction. But a personal tax cannot he assessed against a non-resident, neither can the property of — 367 — a non-resident be taxed unless it has an actual situs within the State, so as to he under the protection of its laws. The mere right of a foreign creditor to receive from his debtor within the State the payment of his demand, cannot be subjected to taxation. It is a right that is personal to the creditor where he resides, and the residence or place of business of his debtor is immaterial.” “ The power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects within the jurisdiction of the State. These subjects are persons, property and business.” Cooley on Taxation, 14, 15; 15 Wall., 300, 319; 11 Allen, 265. In a subsequent chapter, treating of limitations upon the taxing power, the learned writer, referring to the above as established propositions, says: “It has already been shown that persons and property not within the territorial limits of the State cannot he taxed. In such a case the State affords no protection, and there is nothing for which taxation can be an equivalent, but where a person is resident within the State, his personal property in contemplation of law accompanies him, and he may be required to pay taxes upon it, wherever it is situate, while the real estate of the non-resident is always taxable where it is.” “It is competent also for any State to provide that tangible personal property situate within it, may be taxed there.” The 15th Article of our Declaration of Eights, announcing the principles upon which the levying of taxes should be based, is apparently a modification of one of the four maxims with regard to taxes in general, laid down by Adam Smith, in his work on the nature and causes of The Wealth of Nations, Part 2, Tit. Taxes, vol. 4, p. 164. That distinguished author's first maxim is: “The subjects of every State ought to contribute towards the support of the government, as nearly as possible in proportion to their — 368 — respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the State.” The language of our organic law is, “that every person in the State or holding property therein, ought to con- • tribute his proportion of public taxes for the support of government, according to his actual worth in real or personal property.” Decl. of Rights, Art. 15. No reference is expressly made to the situs of the property as the ground of obligation, where the tax is laid on the person; the elements of tire duty are, the ability of the citizen to pay, and the protection he enjoys under the government. By the universal law of all civilized nations property in action had its habitat at the domicile of the owner; it could not exist separately from the owner; as an obligation, or duty owing to him, it must follow his person. The State which protected him, or of which he was a citizen, must eventually protect his right to such claims, if the right was assailed or denied. The early decisions of this State announced two apparently conflicting propositions on the subject of the power to tax choses in action. In the Tax Cases, 12 G. & J., 118, it is held, that “nonresidents of the State are liable to the tax in respect of stock held in the banks of this State, as well as residents here.” 2ndly. That a mortgage in the hands of the mortgagee is liable to be taxed as an item of his property, etc., at the domicile of the creditor. The first, seeming to lay the tax on the debtor institution; the second, laying the tax on the creditor. The principle on which the first proposition rests, must be, that the bank, being incorporated by the State, it is competent for the State to impose a tax úpon its stock,, wherever, and by whomsoever held; because the cor — 369 — poration is the creature of the State, and exists hy its permission. Eo opinion was filed in the cases just cited, hut in Howell vs. The State, 3 Gill, 14, this Court entered into the theory of taxation, declaring it was an incident of sovereignty and co-extensive with that to which it is incident. It said: “All subjects over which the sovereign power of the State extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. The sovereignty of a State extends to everything which exists by its authority, or is introduced by its permission; but it does not extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States.” “The power of taxation extends to all the people of the government, and embraces everything which may he fairly considered as constituting a part of the mass of the property of the State.” These propositions, which have since become axioms, were, it is believed, the result of very elaborate discussions us to the extent of the power of taxution, granted to the General Government, by the Federal Constitution, and were laid down by the Supreme Court of the United States from time to time, as the power of the States, and the Federal Government, were brought in question. See McCulloch vs. The State of Md., 4 Wheaton, 316. The principles on which they are founded are derived mainly from the law of nations, as applied to the anomalous relation of the States to the United States. They have been adopted and recognized since as elementary law, in all the text-books on taxation, and are regarded by the Courts as safe guides in all questions of jurisdiction between the several States. This Court recognized and re-affirmed the principles, which govern the imposition of taxes on debts or securi — 370 — ties within the State, in the case of Latrobe, Trustee vs. The Mayor, &c., 19 Md., 18. The subject of taxation was a mortgage or mortgages on real estate lying in the City of Baltimore, to secure debts due to the appellant as trustee. The appellant resided in Howard County, the cestui que trusts in Baltimore City. The appellee assessed the mortgages in the city, accord-to the rate of taxation imposed there. The question was whether the mortgage was liable to taxation where the trustee resided, or where the property mortgaged was located and the cestui que trusts resided. It was contended on behalf of the trustee, that the legal estate in the debt vested in him, and the universal rule as to personal property was, that it followed the domicile of the owner; that he alone had the right to receive, to sue, and recover judgment, if not paid, and to release, if paid. On the other hand, the counsel for the city contended, the cestui que trusts were the owners in the legal sense. This Court held: that the thirteenth Article of the Bill of Rights (now 15th) declaring that every person holding property in this State, ought to contribute his proportion of public taxes, according to his actual worth in real or personal property, meant a legal obligation to contribute taxes, and such obligation could only be imposed on the person holding the legal estate; and the Acts of Assembly, requiring all property owned by persons residents of this State, and not permanently located elsewhere within the State, to be valued to the owner within the county, district, or city wherein he may reside, were gratified by assessing such property to the trustee, at the place of his residence. To ascertain the location of the property for which the taxes claimed were assessed, they held “upon the principle that the possession of personalty follows the person owning the legal title, that the mortgages, so far as they could be made the basis of assessment, were beyond the jurisdiction of the appellee.” — 371 — The assessment, in such cases, is made upon the amount of the mortgage debt, and not upon the value of the property mortgaged to secure it. As the basis of the assessment is the amount of the debtor’s obligation to the creditor, the recording of the mortgage in another county, or district, than that of the creditor’s residence, collaterally securing its satisfaction, cannot have the effect of locating the debt where the mortgage is recorded. The principle here applied to counties and cities within our own State, has been long established between independent States. “It is a clear proposition (said Lord Loughborough) not only of the Law of England, hut of every country in the world where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner, both with respect to the disposition of it, and with respect to the transmission of it either by succession or by act of the party; it follows the law of the person. The owner in any country may dispose of his personal property. If he dies, it is not the law of the country in which the property is, hut the law of the country of which he was the subject, that will regulate the succession.” Sill vs. Worswick, 1 H. Blac., 690; Bain vs. Whitehaven and Furness Junction R. C., 3. H. L. Cases, 19. Judge Story declares, “mobilia sequuntur personam” is the maxim of our own, as of the Roman law. The personal estate of a testator accompanies him wherever he may reside and hecome domiciled, so that he acquires the right of disposing of and dealing with it according to the law of his domicile. Story’s Conflict of Laws, (3rd Ed.,) 638, 639. Bremer vs. Freeman, (Priv. Council, May, 1857,) 3 Jur. N. S., 202. Anderson vs. Lanersville, 9 Moore, P. C., 325. The cases referred to as exceptions to this universal rule, are rather modifications of it, in some particulars, — 372 — than exceptions. Although the mode of alienation maybe prescribed by the “ lex loci,” yet the right of the owner to dispose of the thing in action is not questioned. The exceptions, such as public stocks or funds, which can only be legally transferred according to the local law, may still be so disposed of under the law of the domicile, as to give the purchaser a right of action to compel the transfer according to the “ lex rei sitce.” Story’s Conflict of Laws, sec. 383, note 2; 2 Kent Com., Led. 46, p. 145,146, 3rd Ed. There is no principle of public law that prevents a State from taxing such stocks where the owner resides, unless the exemption of them from taxation, by the State which issues them, distinguishes them from other choses in action. It is a fundamental principle, “ that the laws' of one country can have no intrinsic force, ‘proprio vigore,’ except within the territorial limits and jurisdiction of that country.” (Story’s Conflict, sec. f.) “Whatever extra territorial force they are to have is the result, not of any original power to extend them abroad, but of that respect, which from motives of policy other nations are disj>osed to yield to them.” (Ibid.) That no State can pass any law impairing the obligation of contracts, is a cardinal maxim of constitutional law. The application of this rule to the acts of a State, violating its own contracts, grants or charters, as the charters of institutions previously incorporated by the State; or, to the exemption of land from taxes within their own borders, is too familiar to require more than a reference to a fe'w leading cases, — vide Fletcher vs. Peck, 6 Crunch, 87; New Jer. vs. Wilson, 7 Cr., 164; Terrett vs. Taylor, 9 Cr., 43; Dartmouth College vs. Woodward, 4 Wheat., 518. The inquiry is: Does it restrain or prohibit the imposition of taxes by a State upon the property of its citizens or residents invested in the stocks of another State, exempted by the law of that State from taxation ? — 373 — It is too clear for argument, upon principle, as well as authority, that the State exempting such stock could not impose such a tax upon its holders without violating Or impairing the obligation of its contract. Murray vs. Charleston, 95 U. S., 445. In the case last cited, the Supreme Court of the United States declined determining the question now presented, because it was not necessarily involved in that case. Here the question arises in limine, and must be disposed of. The inhibition of the Federal Constitution, as interpreted in other cases, refers to the obligation of the contract between the State and its grantee or obligee, and not between the obligee and third parties, in whose behalf rights might supervene. The effect of Acts of Limitation, or insolvency, or laws repealing former laws in the nature of grants, or conferring vested rights, are examples coming within the letter or spirit of the prohibitory clause. The exercise of the power to tax property, or rights in action resting in such contracts, does not in any sense impair the contract, but rather enforces it, by asserting rights incidental and collateral to them. The contract of exemption is, by its terms, limited to the State granting it, as its authority is only co-extensive with, its territory and cannot “proprio vigore” operate on the rights and powers of other States. The situs of the stock being that of the domicile of its holder, his property or “jus disponendi,” according to the law of nations, is subject to the sovereign powers of the State wherein he resides. Whether this power should be exercised or not, is a legislative, not a judicial question. The owner, being according to the constitutional obligation bound to contribute to the support of government in proportion to his worth in real or personal estate, cannot complain, if he is fairly taxed according to his ability by the Legislature of his domicile. — 374 — • Taxation and representation are co-relative rights. Wherever a citizen or resident is represented actually or constructively, he is presumed to owe obedience to the laws of the State which protects him. They secure every right which he enjoys, and the State is entitled to all the means necessary to maintain them. “No nation can be justly required to yield up its own fundamental policy and institutions in favor of those of another nation.” Story Con. Laws, ch. 2, sec. 25. “A nation is not under any obligation to recognize rights, contracts or acts, which are to its own prejudice, or in opposition to its own settled policy.” Story Con.,p. 97, sec. 70: 1 Burqe Com. on Col. and For. Law, p. 1, ch. 3, sec. 3, p. 129 to 134. The prejudicial consequences of allowing citizens of this State the benefit of exemptions from taxation, granted by other States, are too obvious to need illustration. The tendency of capital to seek investment where it will he free from all contribution to public burdens, is exemplified by instances too numerous to be particularized. No principle of comity can he invoked to sustain claims which are contrary to the organic articles of our State Constitution, and destructive of the means of preserving the public peace and public faith. The next material question is, the effect of the Act of 1878, ch. 413, upon the assessments made in pursuance and by virtue of the Act of 1876, ch. 260. The professed object of the Act of 1878 was to amend the second sub-section of the Act of 1874, ch. 483, as the said second sub-section was amended by the first and seventeenth sections of the Act of 1876, ch. 260, and to re-enact the same in a new and amended form; and also to amend the third sub-section of the Act of 1874, ch. 483, as amended by the Act of 1876, ch. 340, and to re-enact the same in a new and amended form. It did not propose to alter, change or repeal the Act of 1874, ch. 483, in any other respect than those specified. — 375 — The Act of 1874 constituted a standing Article of the Code of Public General Laws, and consisted of sections and sub-sections; it is entitled: “An Act to repeal Article eighty-one of the Code of Public General Laws of the State of Maryland, entitled ‘Revenue and Taxes,’ and to re-enact the same with amendments.” Section 1 enacts: “ That Article eighty-one of the Code of Public General Laws, entitled ‘ Revenue and Taxes,’ be and the same is hereby repealed; provided, that said repeal shall not affect or impair any right vested or acquired and existing at the time of said repeal under said Article, or any section thereof; nor shall it impair, discharge or release any contract, obligation, duty, liability, or penalty, whatsoever now existing ; hut that all suits and actions pending, and all prosecutions for penalties, crimes, or misdemeanors, under said Article, including all civil and criminal proceedings whatsoever, shall be prosecuted and proceeded with to final determination, and judgment entered therein as if said Article had not been repealed.” This proviso is incorporated with the Article as a standing clause, preceding and qualifying all subsequent sections, as a cardinal principle in the system of Revenue and Taxes. It is nowhere referred to, or repealed in the subsequent Acts, which amends the Article, and must he regarded as the basis of the legislation on that subject. The question as to the operation of repealing and re-enacting laws, under the provisions of our State Constitution, Art. 3, sec. 29,-which requires the General Assembly in amending any Article or section of the Code of Laws of this State, to enact the same, as the said Article or section would read when amended, was considered by this court, in a very analogous case, Dashiell vs. The Mayor, &c., 45 Md., 622, where it was held that the doctrine of the text-books, “that the effect of repealing a statute is to obliterate it as — 376 — completely from the records of the Parliament as if it had never passed,” etc., does not apply to our mode of legislation, “that the repealing and enacting part of the Act, take effect at the same instant of time,” and the enacting part substantially re-enacts the provisions of the first statute; for which position, it was said, there is high authority, referring to Fullerton vs. Spring, 3 Wis., 667; Alexander vs. State, 9 Ind., 337; Knoup vs. The Piqua Bank, 1 Ohio, 603. In the case of Dashiell, the action was assumpsit', to recover taxes assessed for improvements, under an ordinance which was afterward rescinded, and another substituted giving another form of remedy. The tax was local and temporary, yet this Court referred to the general principle that wherever a duty was imposed by Act of Assembly, and no other mode of enforcing it was prescribed, the action of assumpsit will lie, on the principle, “ that where the law gives a claim to one against another, it raises an implied assumpsit on the legal obligation to pay.” The system of Revenue and Taxation for State and municipal purposes, being a continuous and permanent system, necessary to meet the ever accruing wants and exigencies of the communities for which they are levied and assessed, it cannot be presumed that there ever was a moment of time, in which any citizen was absolved from the obligation of contributing to the public burdens in proportion to his ability to pay. The laws providing for the assessment and collection of these taxes have, therefore, never been suspended or repealed, and the duties and obligations they imposed, have not been discharged or released, and all proceedings instituted under the Act of 1876 are still in full force and effect, the Act of 1878, ch. 413, in nowise altering or repealing them; the latter Act, being prospective in its operation. It results from the principles announced, and — 377 — the conclusions drawn from them in the foregoing opinion, that the order appealed from in this case must he reversed; except as to the sum of $10,000 private securities admitted at the argument to he improperly assessed. (Decided 31st January, 1879.) Order reversed, &c.